HL Deb 16 May 1978 vol 392 cc220-99

House again in Committee.

Clause 64 [Public bodies]:

Lord CAMPBELL of CROY moved Amendment No. 207: Page 31, line 18, at beginning insert ("Subject to the reservation of functions listed in Schedule 15 to this Act").

The noble Lord said: The noble and learned Lord, Lord McCluskey, will immediately recognise that this is another Amendment on Schedule 15; and the last Amendment which I moved served as notice that an explanation was needed about how Schedule 15 fits into the Bill. On that occasion, the noble and learned Lord was good enough to say that he himself was somewhat mystified and not completely satisfied about the role which Schedule 15 is to play in the Bill, and that he hoped at a later stage to be able to inform the Committee about it; and, of course, I was very glad to give him the time in which to do that. I hope he may be ready today to tell us more about Schedule 15, because that is the purpose of this Amendment; it is simply a probing Amendment.

Perhaps I may remind your Lordships that I had two points. First of all, Schedule 15 has against it, in the rubric, reference to Clause 77. It is therefore related to that clause. But Clause 77 is simply the definition clause, and contains the definition of "reserved functions"; and that raised in my mind the question where Schedule 15 fitted in, as it was related only to a definition clause. Then, the second point which I raised, and which I think the noble and learned Lord very much took on board, was that, even if one gets that explanation, there is a danger of some ambiguity in the Bill because, al-although the definition of the term "reserved functions" is in Clause 77, the term "reserved functions" appears in different parts of the Bill; and when someone is reading the Bill they may well think that it simply means functions which are reserved rather than devolved, whereas under the definition, "reserved functions" has a very specific meaning in the Bill. They are simply functions reserved for certain bodies which are listed in Schedule 15. So, quite apart from the first point about how Schedule 15 fits into the Bill, I think one also wants to raise the drafting point of whether it is satisfactory to have a possible misunderstanding about the term "reserved functions" when one meets it in the Bill.

If we can go to the immediately preceding clause (I did not raise this on the Question, Whether the clause shall stand part? because I realised it would be more convenient to the Committee if I raised it now) we see that in Clause 63, at the beginning of line 13 on page 31, there is the term "reserved functions". Without studying it in great detail, I immediately wonder, because I know this point of ambiguity exists, whether that means reserved functions in the general sense, as opposed to functions which are devolved, or whether it means reserved functions in the specialised sense of the definition in Clause 77.

There are some other points in the Bill where the term "reserved functions" appears and where there could be this ambiguity; a misunderstanding to those who will have to deal with the Bill later, if it is enacted. So I hope that the noble and learned Lord, in the time between the last probing Amendment on this subject and now, has been able to deal with these questions. I beg to move.


I hope I will not disappoint the noble Lord by my answer, but I certainly will not surprise him if I say that, of course, when one looks at a part of the Bill and finds that it is not immediately satisfactory—that was his experience, and I shared it with him—it is not necessarily very easy simply to alter one or two words, because it sometimes affects the structure. The position is that we are still looking into the matters that were discussed on the previous occasion and which the noble Lord has touched upon on this particular occasion. We are reconsidering Schedule 15, and the current state of progress, as I am advised, is that a submission has been put to the draftsman and we are awaiting his deliberations and decision on that. I can only say, therefore, that I shall be returning to that matter when we come back to this part of the Bill on Report.

So far as Clause 63(2) is concerned, I think it is clear that the use of the words "reserved functions" is as defined in Clause 77. Indeed, that is so whether the words appear in this clause or elsewhere. As I pointed out on the previous occasion, the words appear in some of the Schedules. So it is really just a holding operation at the moment. We are hoping to make progress, but I cannot report progress at this stage.

The Earl of PERTH

If I understand the noble and learned Lord aright, he is going to have another look at the words "reserved functions". I am sure this is a good thing, because the phrase is confusing I think, to the ordinary person. We who have gone all through the debate understand it, but come a year or two it might be a matter of great puzzlement. So I hope those two words will be looked at again.

The Earl of SELKIRK

I am very glad that the noble and learned Lord is looking at this. I find it very difficult to reconcile Schedule 15 with Schedule 10. I thought that in dealing with Schedule 10 —this monstrous Schedule— we had settled this business. I do not even know whether Schedule 15 reconciles itself with Schedule 10. So I am delighted to hear that some consideration is being given to that. I do not know whether it will be possible to replace it with a Schedule saying which of those local authority subjects w ill receive specific grants. This is not unimportant, particularly in view of a letter I received from the noble Lord, Lord Kirkhill, on this. As I understand it, specific grants reserved to local authorities will be paid directly by the Secretary of State and will not form part of the block grant. I think that, in point of fact, it was worth putting that into this Schedule in place of what is there. Many of these subjects in Schedule 15 will be part of the block grant, but not all of them. I think that it would have been not without some significance if we could know which ones will be singled out for specific grants and which will not. I do not know whether the noble and learned Lord can consider that point, perhaps, when he is examining Schedule 15.


I think that if one looks at where these words appear in the clauses of the Bill one sees that they in fact arise only in Clause 63(2). Plainly, the functions referred to there are functions which are not necessarily functions which receive specific grant payable directly to the local authority. But I am certainly looking at the whole matter, because the one thing I want to avoid is any possibility of confusion; and it was because, when we looked at the Amendment moved on the previous occasion, Amendment No. 169, we recognised the possibility of confusion that we decided to look at the whole matter again. So all these points are being taken into account.


I am grateful to the noble and learned Lord. I will make it clear that I do not think there will ever be a complaint from me on this side of the Committee if the Government say they are looking at something and need time to look again at it, because I think that these matters are so important that, if there is doubt about the role which a Schedule is to play in the Bill, I for one would far prefer the Government to take their time and have the benefit of the advice which is available to them, and, if necessary, rewrite that part of the Bill. So I make absolutely no complaint that the noble and learned Lord, after several days, still cannot give us a complete reply; and I am glad that this reexamination is taking place.

I realise, as the noble Earl, Lord Perth, has said, that it would be difficult for the layman picking up the Bill not to fall into a trap when he met the term, "reserved functions". I recognise also that those who spend their lives dealing with legislation, if they pick up a new Bill, probably start by looking at the definitions clause to see whether there are in it any special terms of art for that Bill before reading any of the clauses. Most people who are involved in legislation, certainly if they see only extracts of legislation, are not to know that what looks like an ordinary expression has a special meaning whenever it appears throughout this Bill. For all these reasons I am glad that the Government are taking this seriously and continuing their re-examination of it, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.11 p.m.

Lord WIGG moved Amendment No. 388: Page 31, line 27, at beginning insert— ("Subject to subsection (2A) below").

The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. With permission, I should like to deal with Amendments Nos. 388 and 389 together for they hang together and it will save time. The purpose of Amendment No. 389—if the Government accept it, as I hope they Will—is to make it clear that the powers of the Secretary of State, if an order is moved under Clause 64, will be limited to the existing powers that the Home Secretary possesses under the Acts which are mentioned in Schedule 13. On 10th May I troubled your Lordships on the Motion that "The clause stand part" by raising this subject. I thought that I did it fairly; that is to say, I made it perfectly plain that I did not expect a reply, that I was unable to ascertain the reasons why betting and gaming were devolved subjects and that I was unable to ascertain from any of the bodies concerned what it was likely that the Government had in mind would result from the devolution of these powers. I regretted (but I do not complain) that the noble and learned Lord, Lord McCluskey, thought that I ought to have given notice. All I can say is that I intended to raise the subject and I give notice again now. I shall pursue this matter until I get not an answer that I necessarily accept but an answer which makes it quite clear that the Government have considered, and fully considered, the steps they have taken.

The only other point I would make in connection with what the noble and learned Lord, Lord McCluskey, said to me—and I do not think he was complaining that I had not attended all the debates—is that he said that on two previous occasions we had debated betting and gaming or various aspects of them. I thought that I had read all the debates reported in Hansard at which I had not been present; and I did not remember that. So the next morning I phoned up the Scottish Office and asked them if they would be good enough to give me references to what the noble and learned Lord had in mind. They referred me to a debate—it was very late at night, I think on 3rd May, and it was reported in the Hansard of 4th May—when the question of a national lottery came up in the Small Lotteries Bill which has nothing to do with the subject that I am raising. Therefore, the noble and learned Lord, I am sure not wittingly, misinformed the House when he said that the subjects referred to by the enactments in Schedule 13 had been before the House on two previous occasions. This is not so. We all make mistakes; this is one easy enough to make.

I want to come back to the real point. Why have the Government devolved these subjects? What do they think is involved in that devolvement? I am going to take as an example (and I will be as brief as I can) the Gaming Boards. In the 75th Annual Report of the Gaming Board, which is a report presented in conformity to Statute, to the Secretary of State for the Home Department, and which is tabled and can be obtained in this House and in another place, the Gaming Board noted that a White Paper on devolution had been circulated and that the Gaming Board was included in the appendices. They made it quite clear that in the seven years of the Board's existence and in cooperation with the police forces of England, Wales and Scotland: We built up a system of control for an activity in which the real dangers of infiltration by unwelcome elements are never very far remote". They made it clear that the Gaming Board was in opposition.

This was a board of some substance. Its Chairman, Sir Stanley Raymond, had held that post for nine years, appointed by successive Governments. It was the considered view of him and his colleagues that this should not be devolved. He said that it would be more appropriate to consider possible devolution of gaming and lotteries after the publication of the Report of the Royal Commission on Gambling, a Royal Commission appointed by the present Government. That was in 1975. In 1976, the Gaming Board came back to the subject and said: In our Report for 1975 we said that the board had represented in the context of the White Paper on Devolution to Scotland and Wales, Our changing Democracy, that the regulation of gaming and lotteries should continue to be on the same basis throughout Great Britain and should not be a devolved matter". They said: Other views prevailed. The Scotland and Wales Bills now before Parliament provide that devolution shall extend to gaming and lotteries. The Government have never said why nor have they given any indication to the Gaming Board or to anybody else of the reason for this action". The report goes on: We have made known our firm opinion that the arguments in respect to devolution in Scotland and Wales apply with greater force to regionalisation". They made it absolutely clear that they were opposed. They regarded it as tied up with the concept of law and order and it should not be devolved.

That is not all. I reminded your Lordships that the chairman was Sir Stanley Raymond. In 1976, evidence was given to the Royal Commission on Gambling—and the evidence has been published—which says: As to lotteries, the law and order issue does not arise in the same acute way; but it must be recognised that any sensible system of control must apply both to where a lottery is organised and where the tickets are sold". They go on to warn that if this is not done —and I cannot believe that the Minister who replied to the debate on May 10th ever read this evidence; and certainly the Home Office had not read it— the abuses which the Government have taken action on about the Irish Sweepstake lottery and multi-lotteries would most certainly reappear". They go on to say: The Board see no substantial argument specifically on gambling in favour of devolution but agree that there is a general contention for the devolution of control. Against this, the Board would say that as regards gaming, local interests are cared for in the same system of licensing arrangements and the Board would see no substantial advantage but considerable danger in departing from this concept of a single gaming board for Great Britain". They go on to argue throughout the whole of the evidence against this.

On this occasion I must stress that the chairmanship of the Gaming Board had changed. Sir Stanley Raymond had resigned after nine years and his place was taken by one of the Membership of this House, Lord Allen of Abbeydale, who had the distinction of being a very wise and competent Permanent Secretary of the Home Office, the very Department responsible for all these activities. So there is a statutory body publishing annual reports and giving evidence to the Royal Commission. In its first evidence, which it repeats, it says, "Leave it at least until the Royal Commission has reported."

The Royal Commission's report is imminent. It has had a very arduous task; but I have no doubt that before the Summer Recess the report will come. I should have thought that the Minister who is replying to me—and in my poor way I was only seeking information—would have said: "We have taken all this into account. We are waiting and we are going to see what the Royal Commission says." The Secretary of State has shuffled to the Royal Commission every single issue that has been at all difficult, every hot potato has been shuffled off to the Royal Commission. I have no doubt that it has now completed its work and that it is at the printers. There is no earthly reason why the Home Secretary should not have asked for an advance copy and advised the Committee of what was said. But no; here is a conception of gambling which has been built up over the whole length of these islands, which is clearly influenced not by any country's boundaries but is subject to influences that come from abroad, and vice versa. This is completely ignored.

I drew attention in the debate on 10th May to the fact that the only sections that are mentioned in Schedule 13 are those sections of the Gaming Act, and those sections of the Betting, Gaming and Lotteries Act in relation to the Horse-race Totalisator and the Betting Levy Boards which deal with the appointments to the boards. There is no other section. Therefore, I in my innocence, thought that probably what the Government were doing—and I still believe this to be true—was to put another dummy in the shop window. Somebody has said: "What are some safe subjects to devolve that we can mention"? This was one of them. They had it in mind to propose to add perhaps another member to each of the boards, and that would amount to devolution.

However, when the noble and learned Lord, Lord McCluskey, came to reply, he repudiated that concept. He said, "No it means far more than that". If it means far more than that, would the Minister tell us what it is? I have mentioned gaming and that is a subject in which I am not interested, but it has been thrown up by my researches as another example of the way that the Government have handled this subject, despite highly competent and responsible advice which they have had front the chairmen of the statutory boards that they have appointed.

Now let us turn to the question which is much nearer my heart—racing and the levy. The noble Baroness, when she was replying on 3rd May, talked about the modifying of the operations under the Small Lotteries Act. If one starts to modify it I believe one is only a step away from trying to introduce a levy from Scotland. Only a pure-minded Member of a Labour Government could really think in such barmy terms as that. Somebody who has never had a bet in his life and believes that it is utterly immoral to have a bet, would have thought of that. if there were two levy boards—and I can imagine how attractive this would be—a levy board for England and a levy board for Scotland, the revenue from the bets in Scotland would accrue to Scotland and those in England would accrue to England. But please remember that racing is indivisible. The Scottish punter will have a bet: 10p each way on a horse running at Ayr; any to come, 20p each way on a horse running at Folkestone: 10p each way on a horse running at Folkestone; any to come, 20p each way on a horse running in Scotland. What do you do—put kilts on the Scottish part of the bet and play the bagpipes? To work this out is beyond all human reason. It is beyond human experience.




The noble Lord may interrupt in a moment. I want to make the point about racecourses. In Scotland there is Ayr, which is a great racecourse. It is equal to any racecourse anywhere in these islands. There are a number of small jumping courses. Apart from the Ayr meetings, there is no important racing in Scotland. I say that with great respect to Scottish people. There are many horses trained in Scotland which come South of the Border to race, and many of the horses which race in the North of England are going over the Border to race in Scotland. To try to have a concept which splits them is nonsense. What is true of horses is also true of jockeys, owners and trainers. The whole concept is one: it is a United Kingdom concept. Betting associated with it, whether it be on horses, football, gaming or the running of lotteries, is all one. To break this up without thinking what is to be done is madness. I give way to the noble Lord.


All I was going to say to the noble Lord was that it is perfectly easy to split up the money paid by the Scottish punter. That is very easy. It does not matter where he places his bet or on what horse he places it. If it is his money, then one could take a lien on it.

The Earl of ONSLOW

May I ask the noble Lord, Lord Mackie of Benshie, to qualify that?

Several noble Lords: Order, order!


Amendment proposed:

Page 31, line 27, at beginning insert: "Subject to subsection (2A) below".


May I finish? That concept of course is nonsense. One cannot split it up in that way because if one did Scotland would be the loser. For example, the big punter in Scotland does not bet in cash; he bets on credit. How one is going to assess the man in Scotland when he has a telephone and he telephones through to England is utterly and completly beyond me. One can go into a betting shop in Scotland and say one is going to take a percentage off the "take". But if the same bookmaker has a cash office there and has a credit office in England, and the punter prefers to come to the credit office, obviously the matter is beyond the realm of handling. As my speech has been shortened by the Deputy Chairman, I shall put him in order by resuming my seat. If I am provoked, I shall carry on later.


I should like to follow the noble Lord, even if I cannot follow every intricacy of his speech. I am not a racegoer but I have contacts with people who are. I think that these Amendments deserve support by the test of common sense. There is no case here for further devolution in this field. With further reference to what he said about racing, I submit that racing in Scotland is only a small part of racing if one takes the United Kingdom as a whole. The greater part is centred, as the noble Lord said, South of the Border. I live just on the English side of the Border. The area is one where a lot of horses are in training on both sides of the Border. Those in training on the North side of the Border spend, I would submit, more than half their racing time South of the Border. By the test of common sense, it does not seem to me that there can be any case for further devolution.

Gaming, and the laws dealing with gaming, create great difficulties for the police. Already North and South of the Border we have differences of law which do not make the tasks of the police any easier. If we have further devolution in this field, we shall have different developments in time, whatever anybody may say now about their intention. Those developments and those differences will create increased problems for the police on both sides of the Border, and that is something about which those who sit in your Lordships' House should take great care before further legislation is passed.

8.29 p.m.

Baroness STEDMAN

May I say at the outset that I have nothing like the expertise of my noble friend who moved these Amendments. Indeed, I stand before the Committee as a very poor pupil at my noble friend's hands in that I took advice from him for a matter of two or three hours before taking part in a debate a couple of years ago in the House. My knowledge of horseracing and betting bodies has not increased very much since those days. Therefore I stand here at perhaps somewhat of a disadvantage against such an expert as my noble friend Lord Wigg.

Clause 64 is essentially a consequential clause. Matters are devolved by virtue of Clause 59 and the groups in Schedule 10, but many of the functions which relate to the devolved matters are at present exercised on behalf of the central Government by public bodies operating on a Great Britain basis. As a result, the Scottish Executive will not be able to exercise their functions fully on devolved fields unless arrangements are made to divide the responsibilities of these bodies so that they can be made accountable to, and perhaps financed by, the Scottish Executive for their activities in Scotland.

There are three bodies in the field of betting, gaming and lotteries: the Gaming Board for Great Britain, the Horserace Levy Board and the Horserace Totalisator Board. These are listed in Part II of Schedule 13. This means that, on a request from a Scottish Secretary and after consultation with the body concerned, the Minister may by order make any or all of the arrangements which are described in subparagraphs (a) to (f) of subsection (2) of that clause. This order will, if Government Amendment No. 387 is accepted later this evening, be subject to the Affirmative Resolution of both Houses of Parliament.

As Schedule 10 now stands as part of the Bill, betting, gaming and lotteries will by virtue of Group 21—the miscellaneous section—be a devolved matter. So it will be necessary in due course to make an order under Clause 64, since without functions in relation to these bodies the Executive will be unable effectively to discharge its functions. If the intention behind these Amendments is to prevent any real functions being devolved in relation to these bodies, then they would make a nonsense of the decision already taken by your Lordships in regard to devolution in the matter of gaming, betting and lotteries. So on these grounds these Amendments ought to be rejected.

The noble Lord, Lord Wigg, as he said, was good enough to give notice that he planned to raise the matter of the treatment in the Bill of the Gaming Board, the Horserace Betting Levy Board and the Horserace Totalisator Board. I hope he may find my explanation of some value. The Committee are aware that betting, gaming and lotteries are devolved by way of their inclusion in Group 21 of Part I of Schedule 10. I had hoped that during our debate on the Amendment to insert a new clause about a Scottish national lottery I had clarified the Government's intentions with regard to lotteries.

Perhaps I may take a moment to remind the Committee that we intend the Assembly to have full legislative competence over this matter, including the right to legislate to bring in a national lottery of their own if they wish to do so. So far as betting and gaming are concerned, our intention is that the Assembly should have a wide-ranging power to legislate on these matters which are, in our view, primarily of a social and leisure nature and therefore ones which should be the responsibility of the elected Assembly in Scotland. There will inevitably be restrictions on the Assembly's competence: for example, they will have no power to change any duties, such as the general betting duty, as that falls within the matter of taxation and is reserved in paragraph 4 of Schedule 2.

It has been argued that these matters are not suited to devolution because they have more to do with the maintenance of law and order than of leisure, and that there must be unified wide control throughout Great Britain to prevent abuses of the law. We recognise that the essential control aspects of the subject are being discussed, but the Government do not see how controls can be detached from their social aspects. The control, unless it broadly reflects the morals and standards of a society, is likely to be difficult to enforce, and Scottish opinions on these matters are not necessarily those of London.

Next we turn to the Gaming Board of Great Britain, whose job essentially is that of control of gaming and gambling. Before I enter into a more detailed consideration of its role after devolution, I should like to echo the tributes already paid to this Board, to the Horserace Betting Levy Board and to the Horserace Totalisator Board. The Gaming Board, the Horserace Betting Levy Board and the Bookmakers' Committee all submitted comments on the 1975 White Paper: the Totalisator Board did not. As a result of the representations received, the Government reconsidered the devolution of betting, gaming and lotteries but concluded that the White Paper proposal should stand. It is understood that both the Gaming Board and the Horserace Betting Levy Board have submitted evidence to the Royal Commission on Gambling about the effect of devolution on their activities. I shall have more to say about that later.

The Gaming Board, which was set up in 1968, has the task of maintaining a very broad oversight over the development of gaming in Great Britain and to check the issue of prospective gaming licences and to advise the Home Secretary on making regulations about the subject. The Board is listed in Part II of Schedule 13, so all executive and legislative competence in relation to it are withheld until a Minister of the Crown, at the request of the Scottish Secretary, makes an order under the terms of Clause 64 and such an order is approved by Affirmative Resolution of both Houses of Parliament, providing that the Government Amendment No. 387 is accepted later this evening.

Thereafter, the Board may account separately to, and may be financed by, the Scottish Executive for its activities in Scotland. Once an order is made, the Assembly will be able to legislate about the Board, but they will be as aware as anyone of the dangers of slackening control and it will be in their interests, as well as Westminster's, to ensure some uniformity of approach and to concert action across the Border. If it is decided, for example, that a separate Scottish Board should be formed, that alone would not prevent arrangements being made for a single joint inspectorate to serve both Boards.

There is one aspect of the making of a Clause 64 order which I must emphasise. That is that before he approached a Minister to make an order, a Scottish Secretary must have consulted the body concerned. I have already assured the noble Lord, Lord Wigg, that the Gaming Board, like all the other bodies listed in Schedule 13, was consulted about the Government's proposals at the time of the White Paper on devolution, and its chairman, Sir Stanley Raymond, wrote to the Government setting out the Board's views, as the noble Lord has told us. But, even so, nothing can be done to the Board, and not even an additional Scottish member can be appointed to it, before yet further consultation takes place.

I should like to say just a few words about the Horserace Betting Levy Board and the Totalisator Board. These boards were also specifically invited to comment on the November 1975 White Paper. The Betting Levy Board was set up in 1961 and their job was to assess, collect and distribute contributions from bookmakers and the Totalisator Board throughout Great Britain. The levy is collected by a sub-committee of the Levy Board, the Bookmakers' Committee, and although that Committee is not listed in Part II of Schedule 13, it should not be assumed that it is in any way unaffected by devolution. It is not there because its parent body, the Levy Board, is, and any Clause 64 order about the Board would take into account the Bookmakers' Committee.

The arguments for allowing no Assembly responsibilities towards these boards are in effect the same as those used about gaming: namely, there is a need for centralised control over betting. It is asserted that if the levy rate were lower in Scotland than in England there would be a considerable transfer of betting and in particular credit betting and laying off by bookmakers from England and Scotland, with the result that the amount of money available to the English Levy Board for the support of those races on which the majority of betting in Scotland and in England and Wales takes place would be reduced. Of course, it would be possible, once the Assembly had full legislative competence over the Levy Board, for it to vary the levy rate from that in England; but surely it is difficult to imagine that it would wish to endanger the English racing scene to the extent envisaged. In the last resort, it would be open to Parliament to legislate to prevent that happening. Certainly, in the Government's view, it would not be right to reserve the activities of the board to guard against this hypothetical possibility alone.

A few words now about the Royal Commission on Gambling, which was referred to by my noble friend: this was set up in 1975, when this Government's commitment to devolution was well recorded and I understand, as my noble friend has said, that it is expected to report in the near future. Doubtless it has taken the very fullest account of devolution in its considerations. My noble friend argued that we should have waited until the Royal Commission had reported, before we decided upon our attitude towards the devolution of betting. But if we were to await every report pertaining to the matter to be devolved, we should never have a Scotland Bill to present to the House.

Several noble Lords: Hear, hear !

Baroness STEDMAN

While that may find favour among some Members of the Committee, it is not the Government's intention not to have a Scotland Bill. Devolution is a fact, which must be taken into account when proposals are made about a very wide range of subjects, and betting and gaming are no exceptions. Nevertheless, consideration of the Royal Commission's findings could have a bearing on the timing of action under Clause 64, and it may be that all parties, including the Scottish Executive, will see merit in delaying action until the full implications of the Royal Commission's report have been considered. To the Government, it seems eminently desirable that Scotland should be able to make its own arrangements about those subjects. It may well be that no great divergence will appear, but that will be for the elected Assembly to decide.

In an earlier debate, we were asked to indicate what is intended in this Bill. I hope that I have given an adequate explanation as to how we see the Bill working in respect of those bodies which were referred to by my noble friend. I admit that I cannot say precisely what will happen, what form the Clause 64 order will take, or how the Assembly will use its legislative competence, because that is up to the Assembly and we cannot here tonight prejudge what will be its attitude. I hope that what I have said has been of some use to my noble friend and to noble Lords in demonstrating that this is a scheme which is workable and that these Amendments are not necessary.


There are many areas within the scope of your Lordships' discussions, on which I regard myself as relatively ill-informed. But if I were to choose that area upon which my ignorance is most profound, I think that I would choose the area covered by this Amendment. Furthermore, if I had been asked upon which Amendment should be least likely to speak throughout these weeks of debate, I should have chosen this one.

However, I listened to the presentation of his Amendments by the noble Lord, Lord Wigg, with a fascination which I am sure all of your Lordships in the Committee shared, and what I said to myself was "Well, the answer had better be a good one." I have listened to the case of the noble Baroness, which she presented with that charming persuasiveness with which she always presents those very full explanations which she gives to the House, and I rise simply to say, in spite of the state of profound ignorance from which I start, that, having listened to the competing contestants, if the noble Lord, Lord Wigg, persists in his Amendment he will have my support, for what that may be worth.

8.43 p.m.

The Earl of ONSLOW

I also listened to the noble Lord, Lord Wigg, with fascination. One could possibly even make jokes about rabbits and snakes, but I shall let that pass. I, too, have no great knowledge of betting and gaming, but we have heard only the Government's bland assertion that everything will be all right on the day. They totally failed to acknowledge the cross-Border games which people will get up to, with the English horse in Scotland backed by people in Glasgow, or the Scottish horse in England backed by people in Northumberland. The scope for confusion, for laying-off and for making a muddle of everything seems to me beyond comprehension. For the noble Baroness just to say that it will be all right on the day, is a very frightening answer from the Government, because that shows that they have not thought this through. I did not feel particularly strongly about this Amendment until I heard the Government's answer.


May I ask the noble Baroness whether this means that the Jockey Club, which is the supreme arbiter of racing in this country, will have no jurisdiction in Scotland?


No. The Jockey Club does not come into this. Gaming is carried on under the Gaming Act. The Horserace Totalisator Board's functions, and the functions of the Horserace Betting Levy Board, are carried on under the statute, the Betting, Gaming and Lotteries Act 1963, which is a consolidated measure. The Gaming Board, to which I have referred, is a statutory body performing its duties and presenting a report to the Home Secretary, who tables it for both Houses. The noble Viscount can get a copy in the Printed Paper Office. That is true of all its activities.

May I just turn to the noble Baroness, and thank her very much indeed. Her charm almost completely overcomes me, but I have had to stick in two pins and I have conic to one simple conclusion. I was going to suggest that she gave seven days' CB to the person who wrote her brief. But I would now say that she should give him detention, because he has not read the Act. The most amazing errors were contained in her brief, one of which is in regard to the functions of the Bookmakers' Committee. The Bookmakers' Committee is also a statutory body, appointed by a Conservative Government under the 1961 statute, and it meets at the request of the Levy Board to make recommendations about the levy for the ensuing year. That is all. It does not collect—that is done by the Levy Board—and it has no other function. But if there is a dispute between the Bookmakers' Committee and the Levy Board, it is decided by the Home Secretary.

I must say this to the noble Baroness: Her charm is such that I am quite sure that what she said about the question of consultation was done with her tongue in her cheek. What form does the con- sultation take? There was an invitation to the statutory bodies to submit views. It is not consultation if you ask somebody to write you a letter, which you consign to the wastepaper basket, because that is obviously what was done.

No noble Lord can seriously believe that there was consultation, in the full meaning of the word, when in 1975 the Gaming Board, a statutory body with a chairman of many years' experience—both Governments had appointed him—made a recommendation, and said "For Goodness sake, do not devolve this subject", and put it in his report which could have been debated in this House. The same thing happened in 1976. Then the chairmanship changed and now there is a very distinguished and respected Member of your Lordships' House, who was Permanent Secretary to the Home Office, the very Department which is responsible for this matter.

Evidence was given to the Royal Commission, and it was again said "Do not do it. This is a very intricate and dangerous subject, which goes right to the heart"—very strong words were used— "of the concept of law and order", which is the point made by noble Lords on the opposite side. That has been completely ignored. But the Government have come along and said tonight that they have consulted; they have asked people to write to them. The Totalisator Board did not write, and the other two bodies protested.

I come to your Lordships tonight, because I have had some little experience of this matter. I believe that your Lordships are heading not only for chaos, but for the breakdown of law and order. What attracted me to this subject, when I accepted nomination, was that I sensed, as a constituent Member of Parliament the dangers to the integrity of the police from illegal betting. I have constantly paid tribute to a Conservative Minister who had the guts to tackle the subject. The legislation has had to be looked at before, and it has been looked at again by the Royal Commission.

I do not want to press this Amendment to a Division, but I shall do so. I shall be failing in my duty, if I do not do so. If I cannot get somebody to act as Teller, then that will be too bad. But I do not think that the Government's action is right. I believe that they ought to leave this matter. It should never be devolved, and before they go ahead they should at least wait for the Royal Commission. Therefore, I invite somebody to join me as Teller and to divide the Committee upon this issue.

Auckland, L. Harvey of Tasburgh, L. O'Neill of the Maine, L,
Berkeley, B. Harvington, L. Onslow, E. [Teller.]
Carr of Hadley, L. Hatherton, L. Redesdale, L.
Chitnis, L. Hemphill, L. Reigate, L.
Clitheroe, L. Inglewood, L. St. Davids, V.
Colville of Culross, V. Kilmany, L. Sandford, L.
Cork and Orrery, E. Kinross, L. Sandys, L.
Drumalbyn, L. Long, V. Selkirk, E.
Dundee, E. Lyell, L. Strathclyde, L.
Ellenborough, L. Massereene and Ferrard, V. Sudeley, L.
Elliot of Harwood, B. Monson, L. Swinfen, L.
Faithfull, B. Morris, L. Thorneycroft, L.
Ferrers, E. Mottistone, L. Tweeddale, M.
Gainford, L. Mowbray and Stourton, L. Waldegrave, E.
Gray, L. Northchurch, B. Wigg, L. [Teller.]
Greenway, L. Northesk, E. Wilson of Langside, L.
Harmar-Nicholls, L. O'Hagan, L.
Birk, B. Janner, L. Ritchie-Calder, L.
Boyle of Handsworth, L. Kirkhill, L. Seear, B.
Castle, L. Lee of Newton, L. Shepherd, L.
Champion, L. Llewelyn-Davies of Hastoe, B. [Teller.] Shinwell, L.
Crook, L. Snow, L.
Davies of Leek, L. McCluskey, L. Stedman, B.
Elwyn-Jones, L. (L. Chancellor.) Mackie of Benshie, L. Stewart of Alvechurch, B.
Gaitskell, B. Maelor, L. Stone, L.
Gardiner, L. Melchett, L. Strabolgi, L.
Greenwood of Rossendale, L. Milner of Leeds, L. Taylor of Mansfield, L.
Gregson, L. Morris of Kenwood, L. Thurso, V.
Hale, L. Murray of Gravesend, L. Wallace of Coslany, L.
Harris of Greenwich, L. Northfield, L. Wells-Pestell, L. [Teller.]
Hatch of Lusby, L. Oram, L. Willis, L.
Hood, V. Peart, L. (L. Privy Seal.) Wilson of High Wray, L.
Home of Troon, L. Perth, E. Winterbottom, L.
Hughes, L. Phillips, B. Wynne-Jones, L.

There have voted Contents, 50; Not-Contents, 50. There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend the Bill in the form which is before the Committee shall be agreed to unless there is a majority in favour of such Amendment, I declare the Amendment disagreed to.

[Amendment No. 389 not moved.]

[Amendment No. 301 not moved.]

8.59 p.m.

Lord KIRKHILL moved Amendment No. 387:

8.50 p.m.

On Question, Whether the said Amendment (No. 388) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 50.

Page 32, line 14, leave out subsection (4) and insert— ("(4) No order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: This Amendment follows from a similar Amendment made in another place to the comparable provision in the Wales Bill. Its effect is to bring the Scotland Bill and the Wales Bill into line. Clause 64 and its accompanying Schedule 13 deal with public bodies which have responsibility for matters to be devolved and which at present operate upon a Great Britain or United Kingdom basis.

The purpose of the clause is to create an order-making power for a Minister of the Crown. This order-making power would make possible the division of the responsibilities and reporting of the bodies after devolution to take account of the devolution of matters with which they deal. In fact, in a sense it could be said that Clause 64 is consequential upon Clause 59 and its accompanying Schedule 10.

Because orders made under Clause 64 are essentially concerned with the consequences of devolution, the clause currently provides in subsection (4) for them to be subject to the Negative Resolution procedure. But having listened to the points made in another place about the comparable provision in the Wales Bill, the Government accept that although the provisions of Clause 64 are consequential they are of sufficient importance to warrant the Affirmative Resolution of both Houses; and that is the purpose of the Amendment.

On Question, Amendment agreed to.

Clause 64, as amended, agreed to.

Schedule 13 [Public bodies]:

Lord CAMPBELL of CROY moved Amendment No. 288: Page 75, leave out line 35.

The noble Lord said: This is a consequential Amendment following the decision taken about forestry by your Lordships' Committee at a previous sitting. On behalf of my noble friends and the noble Lord, Lord Taylor of Gryfe, and myself, I beg to move this Amendment formally.


I know that this is a consequential Amendment but I should like to seek a little information. When the previous Amendment, which was carried, was moved, the noble Lord proposing it indicated that he had the support of the whole of the forestry industry in Britain, and today in the Scotsman newspaper there appeared a letter in which the Secretary of the Forestry Commission said that no one spoke for the Forestry Commission except the Government and that therefore this statement was incorrect. I sincerely hope that the Government will correct this Amendment, which in my view emasculates the Bill and takes far more from the Assembly than is apparent from this one Amendment. I should like to ask the Minister if he would say what the attitude of the Forestry Commission was to the splitting of responsibility between the Government on the one hand and the Assembly on the other, and whether they were opposed to it or thought it was administrably possible and could be worked without difficulty. I must say that this is my view and my information, but I should very much like to hear what the Government have to say about this new point which has arisen since the last Amendment was moved and carried.


As the noble Lord, Lord Campbell of Croy, said, this Amendment is consequential and for that reason the Government do not oppose it. In relation to what the noble Lord, Lord Mackie of Benshie, has said, the Forestry Commission were of the view that the proposals as contained in the Bill were workable. Let me make that quite plain. I have no doubt we shall be coming back to the matter of forestry on another occasion.


The noble and learned Lord said that the proposals as contained in the Bill originally were workable. I thought that the question which the noble Lord, Lord Mackie of Benshie, asked was what was their view now that the Bill had been amended. I assume from what the noble and learned Lord said that they will find that workable as well.


My views have again been misinterpreted. I wanted to clarify that there was information or fact not brought out properly when the last Amendment was made.

On Question, Amendment agreed to.

Schedule 13, as amended, agreed to.

Clause 65 agreed to.

9.7 p.m.

Clause 66 [Planning]:

Viscount COLVILLE of CULROSS moved Amendment No. 208: Page 32, line 26, leave out from beginning to ("any") in line 28 and insert ("A Scottish Secretary may exercise").

The noble Viscount said: This short clause introduces a very strange exception to the general pattern of the Bill, because although the powers dealing with the whole realm of town and country planning are devolved to the Scottish Assembly and the Scottish Secretaries the general fiscal override powers as to the executive action of the Scottish Secretaries in Clause 36 are not applied, and a special machinery as set up for intervention, I think it must be in individual cases, in Schedule 14. I am not sure how this is supposed to work or why it is considered desirable, and Amendment No. 208 is simply a probing Amendment to see what it is all about. Therefore the noble Lord, Lord Kirkhill, will certainly do me a great service if he will explain why we have this curious procedure for the planning world in Scotland.

It is not easy for the layman to understand. One of the difficulties about planning is that it affects an enormous number of people, some of a very humble nature who need to know who is going to deal with their problems and how the whole thing is to be sorted out, and this method of drafting does not enable them to find out more easily than would be the ordinary case.

The second Amendment, No. 209, to which perhaps I could make reference in order to save time, is a request for explanation as to why it is that if the standard override powers in Clause 36 do not apply to executive action the standard override powers in respect of subordinate instruments do apply. There are not many subordinate instruments made under the Town and Country Planning Act but there are some. There are special development orders and these can he of extreme significance. After all, did we not have yet another debate on a special development order for Windscale in another place yesterday? There are various powers made in relation to industrial development, office development and the exemption limits, and things of that sort.

I do not understand what is the philosophy which is supposed to be underlying this. In the first place the executive action is subjected to the extraordinary provisions of Schedule 14, but the equally individual cases which can be dealt with sometimes by statutory instrument are not dealt with in the same way, and the illogicality is such that I wonder whether there is any explanation at all. I have been quite unable to work it out but I am sure that the noble Lord, Lou] Kirkhill, will explain it with the greatest lucidity so that we shall all understand it. I beg to move.

9.9 p.m.


At the outset I should say that standing at this side of the Table is a humble citizen who would have great difficulty in understanding the complexity of this part of the Bill were it not for the fact that I have an adviser who has been advising me, but I shall do my best to explain this part of the Bill to the noble Viscount. I must start by saying that it is obvious that if we are going to have an Assembly, town and country planning is a matter which should be devolved, and Group 6 of Part I of Schedule 10 specifically does just that. In the view of the Government it is clearly right that decisions on most planning issues, those that concern matters of local or regional importance but do not affect people living outside Scotland, should be dealt with by the Scottish administration. I say that just to set the scene.

I shall go on to say that not all planning issues are of purely Scottish concern and that important activities which will, to an extent, depend on planning decisions will continue after devolution to be the responsibility of Government Departments and of bodies accountable to Government Departments. An example of that would be the major nationalised industries. Parliament therefore retains a direct interest in those important aspects of planning and Parliament will expect Ministers to continue to take full responsibility for ensuring that such matters are properly safeguarded in the United Kingdom interest. If a non-devolved interest was prejudiced by action or inaction in the devolved area of planning, Parliament would not accept lightly the fact that such prejudice could not be forestalled and prevented.

The activities of Government Departments and other bodies accountable to Parliament may be affected by planning proceedings in two ways: first, planning permission may be required for new development, although not, of course, for developments by the Crown itself. Secondly, prejudicial uses of land may be proposed by other developers, for example within the safeguarding area of a military airfield. When land use disputes arise requiring a judgment as to priorities between devolved and non-devolved interests, in the last resort they can be resolved only at the level of Central Government since the devolved administration by its nature does not have the same authority to assess the implications for the non-devolved interests. The constituency for such interests is the entire United Kingdom and not merely Scotland. Accordingly the Bill provides a procedure by which the Secretary of State can arrange for planning issues potentially affecting non-devolved matters to be brought before him for decision—that is, to be called in: for example, planning applications, planning permission appeals and enforcement procedures. Where an intervention is made, the subsequent actions of the Secretary of State will be determined by the requirements of the planning legislation. For example, he must give the parties an opportunity to be heard at a local inquiry, and Schedule 14 makes it specific, at paragraph 8, that a Scottish Secretary must be given an opportunity to make representations at a hearing. The Secretary of State will be able to call in cases which are either before a local authority or before a Scottish Secretary.

Obviously it can be argued that the general intervention powers of Clause 36 should be adequate to meet the need, but the Government do not accept that view, for this reason. Intervention under Clause 36 would take the form of a direction from the Secretary of State to the Assembly, requiring subsequent approval by Parliament. A procedure of this kind, unlike that provided for in Schedule 14, would deny interested parties the rights to express their views which vest in them under planning procedures generally. It would also involve inviting Parliament to take a view on issues which should as a rule be, and certainly are at present, determined in a quasi-judicial rather than a political way. It is for these reasons that the Government consider that, where the special planning intervention procedure applies, the intervention powers normally exercisable under Clause 36 should not be available.

If I may speak to Amendment No. 209 at the same time, as the noble Viscount touched on his second Amendment, the noble Viscount did say when introducing his Amendment that there would be cases where certain Statutory Instruments made under other provisions of the planning legislation and laying down procedures or forms of notices would relate in part to the exercise of some of the powers listed in Schedule 14. The noble Viscount's Amendment would relate to Instruments of this kind, since they apply "for the purpose of the exercise of" listed powers. It would make it impossible for such Instruments to be revoked under Clause 37, even though they might deal with matters in no way the subject of special intervention under Schedule 14. The Amendment would, therefore, have no direct effect on the matters covered by Clause 66 and Schedule 14, but it would apply to Instruments to which the special intervention arrangements do not extend. In the Government's view, this seems an unwarranted restriction on the use of Clause 37, in no way comparable with the disapplication of Clause 36 powers proposed earlier by the Government. Clause 36 intervention, in so far as it relates to specific executive decisions, is an alternative, although in the Government's view an unsatisfactory one, to the exercise of the Schedule 14 powers. But Clause 37 would not bite on determinations under Schedule 14 powers, only on certain procedures, most probably of general application, which might indirectly affect the exercise of the Schedule 14 powers.

It is most unlikely that the Government would ever wish to exercise Clause 37 powers to revoke any Instrument of a kind which would bear indirectly on the exercise of the powers listed in Part I of Schedule 14. But a procedural Instrument might at the same time contain other provisions which had a direct effect on reserved matters. The Government accordingly believe that, since the Amendment might conceivably result in the removal of protection for reserved interests, the availability of Clause 37 powers should be retained without restriction as proposed in the Bill. I acknowledge that that is a complicated explanation, but, as the noble Viscount said earlier, the matter is complex. I have taken the best advice that I can on the matter, and this is the explanation which I have been given.


I do not think it is particularly complex, but what the noble Lord has now told us points in my view to great areas of complete illogicality. I am only sorry that something seems to have gone wrong with my Amendments, because I had some down on the extent of the list of intervention opportunities in Schedule 14; I shall be asking the noble Lord why some have been left out. I understand now the philosophy of what the Government are seeking to do. I do not wish to make anything dramatic out of it. But shall we take the case of Windscale which is in everybody's mind, where the new process is being inquired into under the ordinary planning procedures at a planning inquiry presided over, as a great exception, by a High Court judge, followed by a planning refusal and the laying before Parliament of a Special Development Order; if it was done in Scotland it would be done under Section 21 of the Town and Country Planning (Scotland) Act. That would be a Statutory Instrument.

Let us examine the situation on the basis of what the noble Lord has said. This would be a matter of national interest on which I would think the Secretary of State would wish to intervene under Clause 66 and Schedule 14. At the stage where there was a planning application, I think by British Nuclear Fuels—there would be a different set of circumstances if it was a statutory undertaker, but let us take British Nuclear Fuels—it would be possible, as the noble Lord put it, for the Secretary of State to call this in, not leaving it to the Scottish Secretary to decide it but having the requisite public inquiry and so on and coming to a decision.

On the other hand, let us suppose that he did not recognise that matter as being of sufficient importance for him to call it in in the first place; he did not appreciate the extent of public feeling that there was going to be; he did not take his opportunity under Schedule 14, which is, after all, time limited—it can only be done at a certain stage of the proceedings—and he allowed the matter to proceed under the auspices of the Scottish Secretary. Let us suppose that there was a massive public inquiry during which it became apparent that there was a great deal of national interest, as opposed to purely local interest, produced by various people who were exercising their rights to appear. At the end of the day, the Secretary of State not having intervened, the decision will be made by the Scottish Secretary. The first thing that happens is that Clause 36 does not apply, so he cannot do anything about it. He has missed his opportunity by failing to take advantage of Schedule 14 and his call-in powers, so he cannot stop the Scottish Secretary making a decision. He cannot use Clause 36 to do that. So he is powerless.

The next thing that happens is that the Scottish Secretary, having looked at the implications of the situation, decides to do it by way of a special development order. In those circumstances, the Secretary of State has only one option to bring to bear: he can override the thing executively under Clause 37 as it stands, because the noble Lord will not take Clause 37 into the same ambit as the override procedures in Clause 66. In those circumstances the Secretary of State can only override the decision to make the special development order by Parliamentary proceedings.

Might he not have wanted, had he wished to do so, to hear a wider range of United Kingdom opinion upon this matter as it had emerged at the inquiry? Is it right, as the noble Lord himself said, that these matters, which are normally quasi-judicial, should be dealt with in Parliament rather than at a local inquiry? Both ways, as drafted at present, the Scottish Secretary and Secretary of State are locked into an impossible situation. The Scottish Secretary can take the decision which the Secretary of State wishes that he could not, but the Secretary of State cannot intervene. Then the Scottish Secretary makes the special development order which is a statutory Instrument, and the only way in which it can properly be examined is at a public inquiry, which is the one way in which the Secretary of State is debarred from examining it, because he can only take it to Parliament. Is that a satisfactory way of dealing with the situation? It may be an unusual set of circumstances and I know that I tend to pick on unusual circumstances, but after all, it has only just happened and it was not 100 miles from the Scottish Border that it happened. The noble Lord, having now set out why this has been included in its present form, has opened a huge area of discrepancies and incongruities which should be thought about again.


I agree that the type of hypothecation to which I have listened with great interest could certainly quite accurately lock the planning door. However, I say to the noble Viscount that at present local authorities in Scotland, when a major issue is developing, usually seek the Secretary of State's call-in permissions. A Scottish Administration sensitive to public opinion would certainly take that first step at the correct time. I should certainly envisage that as being the practical outworking of the situation, and I should at least put that point to him.


I am sure that that is right, and I am not trying to say that the Government in their philosophy are necessarily wrong. It may very well be that this is a most sensible thing to provide. I am saying that if we look at the nuts and bolts of it, they have set themselves up a very rigid structure which will not serve all the exigencies which may occur. Why is it that they cannot look at this once more to see whether they can make it a little more flexible? I do not think that it would cause tremendous offence, either in Edinburgh or Whitehall, if we had a structure which could bend a little more to the way in which matters develop.

Would not the Government like to look at this point once more? I do not believe that it has been discussed in detail before. Would they not like to look at the matter to see whether they have really taken account of all the possibilities? I should have thought that such a course would be wise, otherwise we shall have a silly situation of the sort that I have described, from which there is no way in which people can extricate themselves. I should have thought that that was most unfortunate.


I am not able to say at this point that the Government will look at this matter again with a view to change. I can say that the noble Viscount's interventions are always carefully examined both by Ministers who are his opposite numbers and by ministerial advisers. I shall certainly closely examine the points that he has made this evening.

The Earl of PERTH

When the noble and learned Lord says that one cannot look at it with a view to change, I wonder whether that goes quite far enough. Surely one looks at it for precisely that reason. It may be that the sequel to that is that one decides not to look at it in that way; but to say that it will not be looked at with a view to change seems to me not to look at it at all. I hope that the noble Lord will consider those words.


I am sure that the noble Lord will. I do not want to take up any more time on this, pending his consideration. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 209 not moved.]

On Question, Whether Clause 66 shall stand part of the Bill?

9.27 p.m.


I should like to raise one matter, which is the position of the Housing Corporation. I wrote to the noble and learned Lord, Lord McCluskey, a week ago saying that I should be raising this point. In the Scotland and Wales Bill of last Session a relationship between the proposed Assembly and the Housing Corporation was defined. In the present Bill there appear to be no corresponding detailed provisions. As a result, it is not clear what the Government have in mind; nor is it clear whether responsibilities, where the Housing Corporation is concerned, will be divided between Westminster and Edinburgh, and if so, how that division will be carried out.

Today I have received a written reply from the noble and learned Lord. I certainly do not expect him to reply in the detail which is contained in his letter to me. As I understand the effect of the letter, the Government's intention is the same as was spelled out in the Scotland and Wales Bill, but that they do not intend to carry out the devolution of any responsibilities until after the Assembly has been set up, and in what the noble and learned Lord has described as the running in period of the Assembly.

According to the letter, the Government's intention is that certain responsibilities related to housing in Scotland—particularly concerning housing associations—would be devolved to the new Assembly and the Executive, and that this would be done by means of an order which the Government would bring before Parliament. That is my summary of the letter which I have received. If it is correct, I think that it will have saved the Committee some time, and I am grateful to the noble and learned Lord for having replied. However, it is important that this should be on the record.


I am happy that our postal arrangements work better than they sometimes do and that the noble Lord received my letter today. I am content with his summary. Perhaps I could make the offer that if anyone else is interested in seeing the more detailed explanation—and it would be an impertinence if I were to read out the letter on this occasion—I should be perfectly happy to send them a copy of the letter.

Clause 66 agreed to.

Schedule 14 [Intervention by Secretary of State in Planning Matters]:

On Question, Whether Schedule 14 shall be a Schedule to the Bill?

9.30 p.m.


There are two points which I want to raise here, and again I apologise to the Committee for the fact that somehow my Amendments do not seem to have been printed. That is certainly my fault and not the fault of officials of the House. The first point I want to raise is a very short one and arises out of the reference which the noble Lord, Lord Kirkhill, has already made to paragraph 8 of Schedule 14. It is perfectly true that when the Secretary of State takes a matter out of the hands of the Scottish Secretary, under that paragraph he is required to give that Scottish Secretary an opportunity of making representations at a hearing in front of the reporter. The only thing that worries me about this is that it is not tied in, in terms, to the ordinary machinery for holding public inquiries and allowing other people to make representations before a reporter. It looks, on the face of it, as though it is a separate inquiry at which only the Secretary of State is heard.

I am quite sure that this is not so. I am quite sure that what is intended is that the Scottish Secretary's intervention shall be a part and parcel of the overall inquiry which is held under the ordinary planning procedure. I would suggest, with great deference to those who have drafted this Bill, that it could be made a great deal clearer that this is so by making a reference to the ordinary inquiry procedures which are provided for in the Town and Country Planning (Scotland) Act 1972, and merely adding the Scottish Secretary in these circumstances as another person who is entitled to be heard. That is the first thing. I think it would be a great improvement. The second matter is of rather more substance. The list of occasions, or topics, upon which the Secretary of State can intervene, and indeed override the ordinary powers of the Scottish Secretary are listed in paragraph 1. For your Lordships' convenience, I will say what these sections refer to. Sections 32 to 34 relate to ordinary call-ins from the regional district authorities to the Scottish Secretary, and appeals from refusals or non-determinations. Then we have revocation or modification orders, discontinuance orders, appeals against enforcement notices, call-ins and appeals against established use certificates, and Section 260 is default powers in so far as they relate to the provisions which are listed.

I can easily see, in the light of the philosophy that the noble Lord explained, why we have Clause 66 and Schedule 14 at all, that that is a good starting point. Now I should like him to tell the Committee why there are so many exceptions in areas where I should have thought that those considerations of United Kingdom policy, which is the basic justification of the whole of this system in the first place, could very easily be involved but are not covered by this machinery.

May I just list the occasions that have occurred to me as being relevant. First, we do not have an opportunity for the Secretary of State to intervene on the special development orders I have already mentioned (which are made under Section 21 of the Act), or indeed on general development orders. Supposing, for the sake of argument—and getting away from Windscale—that the Scottish Secretary decided to make a general development order which allowed anybody to use any piece of land in Scotland, without planning permission, for building oil rig platforms.

This is, so far as I can make out, a fairly touchy matter of United Kingdom policy, certainly crossing the Border to the English side, and one upon which United Kingdom policy could very easily be involved. But, under the Bill as it stands, the Scottish Secretary could make such an order, and the only method of overriding it would be under Clause 37, which is the political override giving nobody an opportunity of being heard at any inquiry because there would only be a Parliamentary opportunity.

The next one that I would ask about is the planning inquiry commission under Sections 44 and 45. There never has been one yet, and very likely, after the third London airport episode, which was the next best thing, there never will be. Pray God there is not, because it was an appalling performance. But if there is—and it is still on the Statute Book—is it right that the Scottish Secretary should be able to set up one of these inquiries into what is, by definition, a matter of national importance, without any power to intervene by the Secretary of State? This would be something which I think would fall within the powers normally detailed under Clause 36 of the Bill, because it would be an executive action; yet it is not in Schedule 14 and the Secretary of State could not intervene.

Then I consider the question of listed buildings, and the related matter of listed building enforcement notices and other matters of control. It occurs to me that there are in Scotland some buildings which are listed under the ordinary planning legislation, and which are of national significance. There is machinery under the taxation statutes, which are not devolved, whereby properties of this heritage standard can be exempted for the purposes of capital transfer tax if they are handed on from father or mother to child. This is based entirely on the worth of the property as seen in terms of the national heritage. It is looked at primarily by the estate duties office of the Inland Revenue, but in fact they are advised by the Department of the Environment, South of the Border, and, I imagine, the equivalent Scottish Department, North of the Border.

Supposing the Scottish Secretary were minded to allow the demolition of one of these nationally important heritage prop- erties. Is it really right that the Secretary of State should wish to avoid the opportunity of intervening altogether because, first, he will not be able to do it under Clause 36, having foresworn that by Clause 66 and, secondly, he will not be able to intervene because he has not listed the power in Schedule 14? This would seem to me to be a strange state of affairs, and the same applies to listed building notices under Section 92 of the Town and Country (Scotland) Act 1972.

The next item, I suggest, arises out of what the noble Lord said about major nationalised industries. The ordinary provisions for applying for planning permission by, say, the South of Scotland Electricity Board or the Hydro Board is covered not by the ordinary provisions at the beginning of the 1972 Act but by the provisions which occur from Section 214 onwards which relate to statutory undertakers. Cannot the noble Lord imagine the proposals of one of those two electricity authorities, or of some other major nationalised industry which counts as a statutory undertaker, raising issues and interests which transcend the Borders of Scotland? Yet in the same way as I have just said, the Secretary of State will not be able to intervene under Clause 36, and as he has not listed Section 214 as being a power to intervene under Schedule 14, what is he to do? The answer is nothing. He has debarred himself completely from intervening in a way that would not occur if we did not have this strange machinery.

Lastly, there are the general inquiry powers under Section 267 of the Act. These are not often used—I do not know whether they have ever been used in Scotland—but they are used sometimes and I recall a celebrated occasion (which I should have thought was chosen for the exercise of these powers because of the national interest involved); namely, the first inquiry into the roads system for the City of Oxford. It was not an inquiry into any specific proposal; it was an inquiry at large and it was held under the equivalent English provision of Section 267 of the Scottish Act. That matter raised representations from all sorts and conditions of men, as it were, both within and without Oxford, and a great deal of national interest and, afterwards, a debate in your Lordships' House.

The Scottish Secretary has equivalently been left totally in command of that kind of affair; only he can hold one of those inquiries because of the reasoning I explained before; namely, that it is not in Schedule 14. I appreciate that this is a collection of extremely fast balls to bowl at the noble Lord, Lord Kirkhill. He cannot be expected to answer them tonight and I gave him only about half an hour's notice of them, but they require an answer and at some stage during the passage of the Bill I should be extremely grateful if he would apply his mind to them.

9.40 p.m.


I readily acknowledge that the noble Viscount gave me advance notice that he would pose this series of questions to me. I have to teil him, as I indicated to him earlier, that my advice, while quite comprehensive, is recently to hand. However, I will attempt to pick up the points he made, if only to show those who read Hansard tomorrow that I did my best. With regard to the first question which the noble Viscount put to me, I can say that the Secretary of State is not actually required to follow normal planning inquiry procedures, but in practice of course he would do so. There is no need, therefore, to put a specific requirement in the Bill. This would in any case be inflexible and would not allow for a possible future change in procedure—


May I intervene? In that case will the inquiry procedure rules, which I imagine exist in Scotland, be amended so as to take account of the possibility of this form of intervention, and fit it in? It can I think easily be done by means of the regulations, rather than in the Statute.


I hope that the noble Viscount will bear with me, as I was going to round off with a flourish and say something rather more positive, which might be to his liking. But for the moment I should like to move on to speak on the other points which he has placed before the Committee. The powers listed in Schedule 14 have been selected with considerable care. They all involve planning cases set in motion by, or against, individuals, and which involve, as we have said earlier, quasi-judicial proceedings leading to a decision taken by a Minister. After devolution such decisions will be taken by a Scottish Secretary, unless the powers in Schedule 14 are invoked. It is necessary, therefore, to consider the points which the noble Viscount raised with me against that criteria.

The noble Viscount mentioned special development orders. These do not involve a ministerial decision, but, indeed, a Parliamentary procedure. It would be inappropriate to use intervention powers where a Scottish Secretary has decided to use the special development order procedure. In these circumstances protection for reserved interests would be found in the override provisions, as was indicated at Clause 37.

The noble Viscount mentioned the general powers to order and hold inquiries, and the powers to refer a case to a planning inquiry commission. But the provisions to which he has referred are not substantive provisions in their own right and are not, therefore, appropriate for inclusion in Schedule 14. This is not to say that Schedule 14 does not make appropriate provisions for such matters. This is achieved by paragraph 4(c) in Part II of the Schedule, which gives the Secretary of State, where he intervenes, all the powers and duties which would have been available to a Scottish Secretary. Thus he will have any necessary powers to hold an inquiry, or to refer a case to a planning inquiry commission.

Planning applications by statutory undertakers were also referred to by the noble Viscount. Where an application is made by an undertaker operating in reserved matters (an example would be the National Coal Board) the Schedule 14 intervention powers will be available in the same way as for other planning applications, and there will be nothing to prevent two Secretaries of State acting jointly, as presently provided, in respect of applications by statutory undertakers, by way of Section 214 of the Town and Country Planning (Scotland) Act 1972.

I should now like to turn to the question of listed building procedures. Listed building enforcement will be a devolved matter by virtue of the ancient monuments and historic buildings in Group 19, and town and country planning in Group 6. Sections 92 to 97 of the Town and Country Planning (Scotland) Act 1972, as amended, set out the arrange- ments for listed building enforcement. Since these are devolved matters, the Scotland Bill translates the references to the Secretary of State to references to the Scottish Secretary. The call-in procedure in Schedule 14 does not apply to the powers exercisable in relation to listed buildings; nor should it, since no United Kingdom interest can be affected apart from buildings owned by the United Kingdom Government, post-devolution, in Scotland.

However, these are interests which are protected by the treatment of Section 253 of the Town and Country Planning (Scotland) Act 1972. In particular, subsection (2) states:

"Except with the consent of the appropriate authority— (a) no order or notice shall be made or served under any of the provisions of sections 49, 58, 63, 84 or 92 of this Act…in relation to land which for the time being is Crown land". Head (f), against the Town and Country Planning (Scotland) Act 1972 in Part III of Schedule 10 of the Scotland Bill, states that the powers under Section 253, except so far as exercisable in relation to land vested in the First Secretary or held for the purposes of a Scottish Secretary are not included. This means that, post-devolution, the consent of the appropriate authority, which will not be the Scottish Secretary, will be necessary to protect the the interests of the United Kingdom Government in any listed building enforcement.

Perhaps I might point out, not as an incidental but because I am aware of the situation, as regards capital transfer tax, that this is totally reserved as a matter of United Kingdom taxation, together with any waivers or special arrangements. Now, I have attempted to respond to the points which the noble Viscount has put to me, but I think they would merit a careful study and consideration by me. I shall give them that. I intend to write to the noble Viscount; and from that point onwards, of course, he will either be satisfied with what I say to him or will respond.


The noble Lord has been more than helpful and most generous, and I am extremely grateful to him. Perhaps at this stage I will take up only three short points. The noble Lord need not be expected to reply to them this evening; they are just matters which I do not understand arising out of what he said. First of all, I do not understand how the statutory undertakers are brought in if you do not make a reference to Section 214 and the consequential sections when you are dealing with applications by statutory undertakers, because it appears to me to be a separate code; and I do not think the National Coal Board is a good example, because that is not a statutory undertaker within the definition. The electricity authorities I chose because they are; that is the difference. The National Coal Board of course has to make an ordinary application, but I do not think that that is the point with which I was dealing.

The next point is this. The noble Lord said that paragraph 4(c) of the Schedule allowed the Scottish Secretary to deal with matters by way of a planning inquiry commission or a general inquiry. Yes, the noble Lord is perfectly right, provided that there has been a triggering application in the first place. Yes, indeed, if somebody has put in a planning application or has done something which brings the matter within the sphere of the listed sections in paragraph 1. But if it is to be a matter which is to be dealt with at large, as it were, then paragraph 4(c) avails the Secretary of State nothing, and he has not acquired any powers to act in the way that the noble Lord said.

The third point is this. I understand that, in terms of listed buildings, those which are owned by the nation and have therefore been defined as being of national interest are protected by Section 253; but that is not my point. I should have thought that if the Government considered that industrial or economic matters which transcend the boundaries of Scotland are in the national interest, it is a Philistine attitude to beat all Philistine attitudes to say that matters of national architecture do not fall into the same category. I do not understand why the noble Lord shakes his head and says that there will never be a case in Scotland where a national architectural treasure protected by the listed building controls is at issue. If it is a privately-owned one, it is in no way covered by Schedule 14 and the Secretary of State has debarred himself from intervening, either under Schedule 14 or under Clause 36; and this, I should have thought, would be a disaster.


I apologise for intervening, but I want to make this point. It is purely a matter of judgment, no more, no less, as to whether these buildings of great historical and architectural merit should or should not stand devolved. I can see the contrary argument, but I think that the emphasis in the Bill is that that which is of especial interest to those who live in a particular area had best stand devolved, if at all possible.


I am in total agreement with the noble Lord. I am afraid that I explained myself badly. Of course, they should be devolved, it is right that they should be devolved; they are devolved. What has happened is that by taking the area of town and country planning out of the override powers in Clause 36 and by not listing the listed building control and enforcement provisions in Schedule 14, this is one of the very few areas in the whole of the devolved section where the Secretary of State has debarred himself from intervening at all. That is what I am saying, that he has totally debarred himself from doing anything about it in a case where, I should have thought there was, at any rate potentially, a national interest. That is what happened under the drafting as it now stands. That is what I am complaining about and not that they are devolved as a matter of course. I am grateful that the noble Lord is prepared to look at this again, for I believe we have some loose ends which we shall need to tidy up.

Schedule 14 agreed to.

9.52 p.m.

The Earl of SELKIRK moved Amendment No. 210:

After Clause 66, insert the following new clause—

Voting by Scottish Members of Parliament. (". Following the first meeting of the Scottish Assembly, Members of Parliament representing Scottish constituencies shall not be entitled to vote on any matter in respect of which legislative competence in relation to Scotland has by this Act been devolved to the Scottish Assembly.")

The noble Earl said: I beg to move this Amendment and I would ask the Committee to note that of the supporters of the Bill, two come from that part of the United Kingdom which is called Scotland and two from that part of the United Kingdom which is called England. I regret that the noble Lords, Lord Duncan-Sandys and Lord Houghton, have said that they were sorry to be unable to be here and that the noble Lord, Lord Shinwell, not unnaturally at this time of night, has found it necessary to depart.

This is called the West Lothian question and no doubt that name is due to the resolution and stamina of the Member of Parliament for that area; but, in fact, it is a misnomer, as the Government explained earlier, and it applies to every single constituency in Scotland. It has been referred to constantly in the other place; it has been referred to not infrequently in this place, but it has never been discussed as a substantive Motion either here or in the other place. It is because of that particularly that I want to direct attention to it.

Perhaps I should explain it briefly. I had thought that it was an ailment which grew round the shale bings of West Lothian; but it is actually a problem which affects not only every constituency but a large part of perhaps the most popular matters which Members of Parliament have to deal with; that is, education, housing, the health services, transport and things like that. Those subjects will no longer be the responsibility of Scottish MPs. Scottish MPs can deal with education, housing, health services and transport in so far as they affect England. I think it is pretty obvious that that raises quite a real problem and I want to make this point. It is not a side issue. You cannot side-step it; it is absolutely inherent in the very structure of the Bill itself. It is nothing to do with number. It does not matter whether there are 10, 20, 50 or 200 Scottish Members. The problem is there; and my object in this is to make us face it.

There is a further problem that, if it is not faced, it will muddle the clarity of members of the public in knowing where the responsibility lies. I think this is something which we must face up to. We cannot sweep it under the carpet and pretend that it does not matter. I want to ask the Committee to face it. Who is to decide this? I think it is perfectly clear that it has to be decided by the House of Commons. That is why I say that we must send back an Amendment which they will look at, and on which they can decide what they want to do about this problem.

I am not going to argue particularly the precise merits of the Amendment which I have put down because it is up to them to decide what they want. It merely says this, in effect: when you come to a subject which is devolved in Scotland, Scottish Members cannot vote on that in respect of England. That is to say, if there is a question on education, the manner in which education is discussed in England, this will no longer be a matter on which a Scottish Member can vote. At the present time, as the Bill is drafted, he can vote and take part in regard to education in Southampton but cannot do it for education in Dumbarton.

This is a lack of balance in the Bill which somehow has to be put right or at least faced up to; a decision must be made as to which way it should go. It is our duty to see that the other place have a full opportunity of making their minds up exactly which way they want it to be. Once it is decided, that is their business. It is their responsibility and they must face it squarely. Though I am not going to argue closely on this Amendment, there are one or two side issues to which I want to make reference. The purists will say: "This has the effect of dividing the other place into certain classes. This Bill already divides Members of the other place into classes. There are those who are responsible for certain things in their constituency and there are those who are not." The division is perfectly clear. What is not clear is where the line should be drawn. It is on the question of where you draw the line that this Amendment makes a certain proposal. I am not going to say that this is the only way it can be done. Somebody has to decide where that line should be drawn.

It is also sometimes said that the effect of this Amendment would be to prevent Scottish Members from voting on those parts of the Bill in which overriding powers are used. That is not so. This only applies to taking action on matters which are devolved. In so far as we use overriding powers, that is not a question of devolved matters at all; that is a normal matter for Members of Parliament. Any single clause in this Bill can be repealed by the Westminster Parliament. The whole Bill can be repealed by the Westminster Parliament. That has nothing to do with devolution as such; that will be the normal function. It only refers to taking action, or responsibility for those actions which are devolved in this Bill.

The third matter which we have to ask is: Is it our business to deal with a matter which is clearly and obviously an issue for the other place? My interpretation of this is simply that the two Houses are complementary, the one to the other. We are different in structure, we are different very often in approach. We should seek to complement one another. Our common task is to see that the Government do not bully the members of the public, to see that they provide good government. We had a discussion on this subject both in this House and in the other place only yesterday. The Government have very frequently, with much skill, tried to avoid that criticism by pretending that the two Houses are fighting each other instead of having the criticism directed towards them. It is for that reason that we must send this or another Amendment to the other place. They can either refuse, agree or amend it in the way that they want. It cannot be ignored; it cannot be passed over. To do otherwise than consider it I believe would create a source of considerable discontent.

A second point I want to make is that earlier on today we had some discussion about what was called the English backlash. With great respect to the noble and learned Lord, the Solicitor-General for Scotland, he turned this aside a little lightheartedly. This is a very serious matter, and anyone who has had any experience of relations between Scotland and England in the legislative sphere knows there is a very high degree of tolerance required on both sides. If that tolerance is upset, it will be to the disadvantage of both parts of this Island. I think it is immensely important that that tolerance should be continued.

If you ask anyone today in the South of England: "What do you think about Scottish devolution?" they will almost certainly say: "Of course Scotland can have devolution, provided they pay for it themselves." The blunt answer is that nine-tenths of the cost of devolution is going to come from the English taxpayer: let us be under no illusion about that. That is where it is coming from, and I think we must recognise the fact. Scotland is doing nothing but receiving. There is no single concession in this Bill which Scotland has to make at all; she is at the receiving end the whole time. I believe that people in Scotland who want an Assembly would be perfectly willing to make a concession. We get certain things and we recognise that we have to pay something for them. I think that most people, including most Scots people, know that you never get anything which is worth while unless you pay for it. I think they recognise that fully and that if we ask them to make some concession they would do so.

I think this backlash is very serious. Every penny is going to come from the Exchequer here; and let us not forget that there are things such as the industrial development certificate, because the whole economic development is enormously important. If we get an "edge" on the relationship between the two countries and everything is granted in a grudging spirit, then it will be very much to the disadvantage of Scotland. I put this forward not in any sense of altruism but, frankly, in a spirit of self-interest. I think it is in the proper interests of Scotland that the Scottish people should recognise they must pay something if they think that the Assembly is really going to give them something.

We must not let this be pushed aside or pushed under the carpet; it must be faced squarely. I think it is right and it is important for Scotland not in any way to accelerate or excite a backlash which I believe is already taking shape, possibly in this Chamber and possibly in another place as well. Therefore I say: let us ask the other place to decide what they want to do about this vital problem. I beg to move.


I strongly support the principle underlying this Amendment, which I believe to be of the utmost importance. I believe we need both the "belt" of fair and equal representation in Parliament for all the component parts of the United Kingdom and the "braces" of this Amendment, or something very like it, in order to uphold the rights of the English majority in these Islands.

After devolution, for example, the Scots will be able to decide for themselves their own educational policy without any English interference or influence. On what moral grounds, therefore, can the right possibly be denied to the English to retain, if they so wish, their own valuable and old-established grammar schools if there should be a majority of English MPs in the other place in favour of so doing? This Amendment may be technically imperfect in one way or another, but that is something which can be remedied at a later stage. The important thing, it seems to me, is to support the principle of this Amendment in the Division Lobbies tonight.


I, too, as the noble Lord, Lord Monson, has just said, support in principle this Amendment. I agree that politics are not logical and of course this Amendment represents logic; but what my noble friend Lord Selkirk said about the English backlash is perfectly true. The average Englishman will say: "Look at the Scottish MPs: they are having their cake and eating it. They are having it both ways."

I should also have thought that it was rather insulting to the Members of the Assembly that they should be, not overruled, but perhaps thought to be not sufficiently competent themselves to vote on devolved matters so that they had to have the support of Scottish MPs in Westminster. It will be very dangerous if the English think that the Scots have it completely their own way. One can use the excuse that politics are not logical, that our Constitution is not logical and even that democracy is not logical. But I hope that at some later stage the Government may accept some kind of alteration to the Bill, such as my noble friend has proposed in this Amendment.

10.5 p.m.


I speak as a Member of the British Parliament and not as a Welshman or an Englishman, although I live in Wales and have a Scottish mother. I have always considered myself a Briton, and I dislike the motives which have caused the bringing in of this Bill. As the noble Earl, Lord Selkirk, said, this is a very important Amendment which goes to the heart of the matter. Time and again during the passage of this Bill, the Westminster Parliament has been admonished that it should be careful not to tread upon the susceptibilities of this delicate and sensitive plant which is to be established in Edinburgh. Yet essential, as I see it, to the presentation of this Bill in the Westminster Parliament is the creation of the anomaly, to which the noble Earl has drawn attention by his Amendment, and which can do nothing but create friction.

I venture to suggest that if the proposal had been the other way around, that Members from England should vote on certain matters affecting Scotland, while Members from Scotland were excluded from voting on the same matters affecting England, this measure would never have been entertained for one moment, and this Amendment underlines that fact as nothing else does. This Bill is an attempt to appease Scottish nationalism, while retaining an illusion that the United Kingdom will remain a politically united realm.

As I see it, democratic Government must be both seen and understood to derive and apply its authority equally as between one part of the State and another. In Parliamentary terms, this is more or less true in our country at the moment, though I hope on Third Reading to draw attention to the wholly anomalous constitutional position of the Scottish Secretary of State. But the Scottish Secretary of State is just, and only just, classed as an administrative post, although I believe for several reasons that, whether or not this Bill passes into law, that post will not be retainable for much longer.

However that may be, the Parliamentary balance has so far been kept. Members from England can vote on measures intended only for Scotland and vice versa. But this Bill upsets this arrangement and sets out matters affecting Scotland, which Members of this Parliament—mainly from England, of course—would be excluded from voting on, while retaining the right of Members of this Parliament from Scotland to vote on the same matters when they affect England. It is true that we already have several anomalies in the case of the Channel Islands and the Isle of Man, which came about by accident and are probably too small to concern us very much. We used to have Stormont which, at the time that that arrangement was made, appeared to be a brilliant solution, but it came to grief because, like this Bill, it was not a solution; it was only the illusion of a solution.

The Nationalists in Scotland will vote for the Bill, because for them half a loaf is better than no bread, and they reckon that they will get more next time if they wait. The quasi-Nationalists—who are often indistinguishable from the Nationalists because they also encourage the view that Scotland is a colony of England, and a deprived one at that—support this Bill and present it in Scotland as a significant change which will make a great deal of difference, while in England and at Westminster people are being told that, on the contrary, it will make very little difference and everything will go on much as before.

I think that I can forecast with confidence that, whether or not it makes much change in Scotland, things at Westminster will not go on as before. Members from Scotland, however nice they are—and I am glad to say that many nice people come here from Scotland—will become unpopular, not personally but because of their presence. Therefore the more sensi- tive will probably become difficult to Whip. They will take less part in debates; they will become unaccountably absent on important votes; or they will discover vital research work to do in the British Museum, or somewhere out of the way of the Division Bell, because they will have become vested with power without accountability, while Members of Parliament and Peers from England and from Wales, if the Wales Bill is rejected, will have accountability without power. Such an arrangement cannot last, because it is inequitable and unfair.

If it is said that Members of Parliament from Northern Ireland are in the same position, that is true. First, however, nobody enjoyed that arrangement, except certain Conservative Governments. Secondly, the Labour Party always, understandably, detested it but tolerated it because the Northern Ireland Members of Parliament were few in number and the occasion for constitutional change did not present itself. Thirdly, Members of Parliament from Northern Ireland were—and still are, unfortunately—under-representative. Therefore, at least, some attempt was made to correct the anomaly which their presence created.

I hope that Stormont will not return and that representation from Northern Ireland will be increased. However, I ought not to discuss the future of Northern Ireland on this Amendment. Here we are speaking not about a dozen Members of Parliament from Northern Ireland but about 71 Members of Parliament. The Government and the supporters of the Bill could hardly devise a more potent formula for friction, divisiveness and resentment. That is exactly what the Nationalists would like. The question is whether that is really what the voters in Scotland, where we are told that this will be the effect of the Bill, would like. It will happen inevitably. It must in all honesty be put to the voters in Scotland that voting for this Bill will inevitably lead to breaking it all up.

If this Amendment is carried, it will serve to bring to the Government's notice once again, and very cogently, some of the mischief which this Bill would create. As the noble Earl has said, this is not a little point to be glossed over or to be evaded. It must be faced up to, in the same way that, if the integrity of this realm is to be retained, Scottish nationalism must be faced up to. I believe that it is no use appeasing it, which this Bill is an attempt to do; it is no use bending backwards to try to accommodate it as a benign phenomenon, as the Government in this Bill are trying to do.

There have been innumerable anomalies exposed during the passage of this Bill—a couple in the last hour or two—and the anomaly which this Amendment is designed to correct is probably the biggest of all. It certainly is the most glaringly absurd, as well as being unfair, so I support the Amendment. It will at least have the effect of mitigating the absurdity and unfairness, and if the noble Earl presses the Amendment I shall follow him into the Lobby.

10.15 p.m.

Viscount THURSO

Those who are supporting this Amendment would like to class themselves as trying to preserve the United Kingdom. In fact, the effect of this Amendment is to cut large chunks of legislative power out of the United Kingdom and to hand them totally and completely to Scotland. You could not find greater separatism than is expressed in this Amendment. I find it quite extraordinary that this should be supported by noble Lords who would like us to think that they are for the preservation of the unity and integrity of the United Kingdom. This Amendment does nothing of the kind.

I am among those who are supporting this Bill not because I am afraid of Scottish Nationalists and not because I think there is some kind of furious mad menace loose in Scotland; I am supporting this Bill because I believe in a federal solution for these Islands. I think it will ultimately give us more efficient legislation. It will relieve Westminster of work; it will give satisfaction to voters and bring Government closer to the governed. I believe that one must keep the element of federal government, even though devolution as expressed in this Bill falls short of federalism. I think we must ultimately accept that a federal solution is the answer. If one has a federal solution, then, although legislative competence is devolved to every part of the Islands—to Scotland and Wales and perhaps even to parts of England—there will still necessarily be areas where a federal concept would need to be discussed in a United Kingdom Parliament.


We are not discussing a federal Bill, we are discussing this particular Bill. If a Bill to establish a federated United Kingdom comes along, we can talk about it then. I am addressing myself to the Amendment.

Viscount THURSO

I think the noble Lord will accept that we are discussing a federal Bill as much as we are discussing Northern Ireland. Whatever one does in the way of devolution in this Bill—and in the Wales Bill when it comes here—there will remain a federal element in everything that is done which will need to be discussed on a United Kingdom basis. We have just seen this in an Amendment moved by the noble Lord, Lord Wigg, where the noble Lord was most upset that legislative competence for certain matters was being devolved so that the action of the Scottish Assembly might affect the situation on this side of the Border in England. We were assured that in that case there was a sort of bracketing arrangement in that there were levy boards and so on which operated on both sides of the Border. In other words, there was a kind of federal link. If in areas of legislative competence that have been totally devolved it is said that Members of Parliament sitting in Westminster and representing people from Scotland are not even allowed to talk about those parts of the devolved subjects that may perhaps affect all parts of the United Kingdom, then one is talking total separatism. I think we must accept that there is a federal element which continues. If you do not like the word "federal" and if it makes you wonder what I am saying, then there is a United Kingdom element that continues. People who are for the integrity of the United Kingdom, just as I am, and yet for devolution, just as I am, would wish Scottish Members of Parliament to be able to discuss this United Kingdom element and not to be totally debarred from discussing a subject.


Before the noble Viscount sits down, will he not agree that, owing to the imbalance of population in the United Kingdom, the federal solution is not really 100 per cent. practicable, because the population of England is about 87 per cent. of the population of the whole of the United Kingdom? It is not like America, and I think it would be very difficult to have a completely federal system in this country owing to the imbalance of population in these Islands.


I should like to make a point before the noble Lord replies. The noble Viscount has been talking about discussing matters: this Amendment has nothing to do with discussing matters, it only relates to voting upon them. Surely he can distinguish between the two. There is no reason at all why Scottish Members should not contribute their wisdom—or what they believe to be their wisdom—to a consideration of English matters, but that they should be able to vote on them when the English cannot vote in the Scottish Parliament seems to be absurd in relation to those particular devolved matters.

The Earl of ONSLOW

I think it would be possible to agree with the noble Viscount, Lord Thurso, on the federal state. It would be possible to split England up into a heptarchy and have Scotland and Wales—say, 10 States in the United Kingdom. That is a completely legitimate and sensible solution; but what is not a sensible solution is the anomaly that we now have. The Member of Parliament for Glasgow, Garscadden can talk about tourism in Surrey but not in Inverness; he can talk and vote on the Tower of London but he cannot talk and vote on Dunsinane or Holyrood. This is the idiocy of it. This is what is going to make the English so cross and it is what will give the English the feeling of being "conned".

The noble Earl, Lord Selkirk, has understood this. He has not said "take, take, take". He has said "give and take". I have an elderly relative who, when she was married, replied when her husband asked her, "Dear, do you know that marriage is all give and take?" "Yes, you give and I take". This is what this Bill is to the Scots at the moment, and it is something that will cause the English to get cross. I have said this once, I shall probably say it again and everybody will be bored to distraction by my saying it, but I happen to believe it from the bottom of my heart. I think that this will happen and that suddenly the worm will turn. This is putting a ratchet screwdriver on the worm to make sure that it turns. It is unfair and it is wrong.

10.24 p.m.


Perhaps I may intervene briefly because I am sure the Front Bench will want to speak after me. I must apologise to the Committee for not having been here throughout this particular point and also to my noble friends who promoted this Amendment, because it seems to me that the argument put forward by the noble Viscount, Lord Thurso is absolutely first class, more especially because we have inserted Amendment No. 327 in the Bill. We must not forget the fact that we want to keep the Scots as part of the United Kingdom. You will remember the very long lecture that the noble and learned Lord, Lord McCluskey—and it was a learned lecture—gave to us about Schedule 10, which is the most complicated part of a Bill I have had to deal with for many a long day. It is going to be a matter of technical difficulty to classify on the spur of the moment the bits of it on which the Scots will be told, "No, you cannot vote". It seems to me quite ridiculous. If we had not managed to put Amendment No. 327 in the Bill, I should have thought my noble friends who are more English than I am would have had a very good point; but because we have put No. 327 in the Bill I would strongly suggest that we need to give the Scots an untrammelled part—on a reduced scale, which it would be—in the Parliament at Westminster.

The Earl of ONSLOW

Does not my noble friend agree that Scottish MPs can vote on English matters but because of this Bill not on Scottish matters? This is the lunacy of it.


If my noble friend will allow me, the Scots are not so different from the English as all that. I am half Scot, so I know. We are all a group of people trying to rationalise arguments, and the difficulties of that particular issue seem to me to be something on which we could go on forever and never get the right answer. On the wider issue, to take some MPs sitting down at the other end of the corridor and say to them, "You cannot vote on X", seems quite wrong. I never liked the idea of some of us in this Chamber being allowed to speak but not vote. It seemed to me absolutely ludicrous. If you are going to be in a Chamber and take part in a legislative system you must either speak and vote or get out. I do not agree with the principle of trying to narrow it and refix it; it cannot be done. If you have a proper balance of Scottish MPs in the House of Commons and you have an arrangement by which because of technicalities they can vote on English things and not Scottish things, so be it.

10.28 p.m.


I do not intend to speak for long, but I feel constrained to say something because of the way in which this particular debate has been going. All the time I have been in politics in Scotland I have been aware, as almost every other Scot has been, of the extent to which people in Scotland have said, "I am not a Scottish Nationalist, but" and then they proceed to recite one or other of the grievances which they think arise from being handled at Westminster instead of Edinburgh. That is not a state which has diminished with the passing of the years. What I dislike about the discussion, on both this Amendment and No. 327, which has been put into the Bill, is the suggestion that these are going to be held out as threats to the Scots, "If you want devolution this is what you have got to suffer in order to get it. You have got to have fewer Members of Parliament; you have got to have Members of Parliament who will be able to vote only on certain things." I regretted very much that that aspect of it was much stressed by my noble friend when he was talking in support of this Amendment, that it should be emphasised to the Scots that if they want this Bill this is what they have to pay for it.

I think the noble Viscount, Lord Thurso, put his finger straight on the point, that if you want to create separation in Scotland this is the way to go about it, because if you are going to have a situation where there are going to be fewer Members from Scotland in the House of Commons, and they are going to have only certain powers, you are going to put into the hands of the Nationalists a weapon which they do not have at the present time, the weapon which is saying: "It is not worth while being down there because we do not need to be there to discuss our own affairs; we can do so in Edinburgh. We do not need to be there to discuss English affairs because we shall not be allowed to do so. We might as well go the whole hog and have a complete separation."

Therefore, in my opinion this Amendment, if it were put into effect, would be the biggest weapon that could be given to the Scottish Nationalists. It looks—and I only put it that way—as though Scottish nationalism is on the ebb in Scotland. If that is so, it is, to a certain degree, because of the extent to which this Bill has, at present, gone through Parliament.


I hope that the noble Lord will forgive me for interrupting him, but would he not agree that there is no particular difficulty in separating the subjects that Scottish Members of Parliament would be able to vote about if they were not allowed to vote on purely English matters, because so many English Bills include, towards the end, the words: This Act shall not apply to Scotland". On the face of it, they will know that that is something that they need not bother with and cannot vote on and in point of fact most of them do not bother to do so now!


I would suggest as regards that matter that the noble Lord should look at the last two or three Sessions of Parliament and find out how much of the legislation that has gone through the House of Commons Scottish Members of Parliament were debarred from taking part in. He will find that it was a very substantial part of the business of another place. He shakes his head. There is an easy way to find out. Let us look at it, not at this moment but I am quite happy to do so at a more convenient time. I think that we shall find that I am right and that he is putting a gloss on the matter.

My noble friend referred to Northern Ireland. The fact that this situation has existed for 50 years in Stormont is overlooked. People are inclined to think, because there are 71 Members of Parliament from Scotland but there are only 12 from Northern Ireland, that we are not comparing like with like. They can tolerate a situation and an anomaly when there are only 12 people involved, but it becomes different when there are 71 involved. I should point out that for the greater part of that time the effect of results, so far as a Conservative Government were concerned, was that there were eight Northern Ireland votes which they could count on during a Division, because they had 10 and there were two the other way.

At present, with 41 Labour Members in Scotland and 30 otherwise, the Government can count on only 11. So, it is a difference in detail so far as Party machinery in the House of Commons is concerned. If it could have been tolerated all that time for Northern Ireland, I wonder why, at this particular time, it should be regarded as so absolutely fundamental that it must be held out as a threat, not to stop the situation arising, but to try to do so. It will be one of the things which will be brought out in an attempt to get a "No" vote.


Would the noble Lord not agree that if this Amendment, or one very like it, is not carried, then in a couple of years' time it will be the English who are saying: "I am not an English nationalist, but …"?


Yes, and this was a point which was referred to by the noble Viscount, Lord Thurso. He said that he was supporting this Amendment because he thought that it would be a step on the road to a federal solution. I happen to believe, along with the Liberals and unlike most of my political colleagues, that eventually the solution will be a federal one. If this helps to bring the English into the frame of mind where they would like to see control of their own affairs, leaving Westminster only for the totally United Kingdom, then it would suit me down to the ground.


I know that the noble Earl is anxious to bring the debate to a close, but the persuasive eloquence of the noble Lord, Lord Hughes, impels me to rise to correct him on one matter of historical fact which I shall leave with the Committee. He said that the feelings in Scotland concerning dissatisfaction with the workings of the Union had not lessened with the passage of the years. That is not strictly accurate. When the terms of the Treaty of Union were announced they caused a major upsurge of concern in Scotland. There were riots in Glasgow, Edinburgh and Dumfries. A mere 10 years later there was an incident in 1715; there was another incident in 1719; there was a little trouble in 1745, and so it has gone on over the years: the ebb and flow. It is not true to say that over the years there has been increasing dissatisfaction with the working of the Union in Scotland.


My noble and learned friend has referred to what I said. Although, like him, I am not very well-thatched on the top of my head, when I was talking about my experience in politics in Scotland I did not intend to convey that I had been around since 1715! I am talking about what has been taking place during the last 40 years. During those 40 years this feeling has grown year in, year out; it has not been an ebb and flow; it has been growing all the time. The increase in the number of Scottish National seats was merely a reflection of that.

The Earl of PERTH

I shall be brief. I voted for Amendment No. 327, but I am less happy about voting for this Amendment if it is pressed. The noble Earl, Lord Selkirk, said that we had to face the fact that even if this Bill is passed, there is already a division and that, therefore, it is nothing different, but merely brings matters to reality if in the Westminster Parliament the division is also made a reality.

However, I do not think that that is altogether right. Those at Westminster who are Members of the Westminster Parliament should all have the same rights and powers. To suggest that because there is a Scottish Assembly you have already cut away the powers in some degree, is not true of those who are Members of the Westminster Parliament. They all have exactly the same rights in the Westminster Parliament. They cannot talk about certain matters in Scotland, but one and all would be able to talk about them in so far as the Westminster Parliamentarians can talk at all.

The Earl of ONSLOW

What is being said is that they can talk about them in England but not in Scotland, and this is what is getting under the collars of the English.

The Earl of PERTH

That is as may be. I am merely making a point in relation to something that the noble Earl, Lord Selkirk, said. The noble Lord, Lord Monson, said that he recognised that a potential sacrifice had already been made in Amendment No. 327, but he felt that not only ought we to have a belt but also braces. I am a braces man and I have found them quite sufficient for my purposes at all times; I continue to hope that my trousers will stay up. I am satisfied with just one thing; namely, Amendment No. 327. I entirely agree with what the noble Viscount, Lord Thurso, said; if we go through with this Amendment it divides things even more. To that extent I hope that the noble Earl will not press his Amendment.


As everyone else is getting into the tight, I should like to make one or two remarks before the noble Earl, Lord Ferrers, gets up. First, we have been over the ground so often, not with regard to the detail—the purpose of the Amendment—but because of the fears expressed from the heart by the noble Earl, Lord Onslow, and from the head by the noble Lord, Lord Raglan. They have put a point of view which arises from not having thought about the problem. They have had a problem sprung upon them which has been with them for many years, but they simply have not known about it. It is extraordinary that the noble Lord, Lord Raglan, should think that one can simply ignore the problem and it will go away. With respect, this is a paraphrase of what he said.


I have been living with this problem all my life. I have been surrounded, at a distance, by Welsh Nationalists and they all speak very much like the noble Lord.


I take the point. The noble Lord has been living with the problem but he has not understood it. This is what has happened, because you cannot have one-third of the Scottish people voting for a Party which is illogical in the situation, and think that nothing is wrong. Of course there is a great deal wrong. There is a great deal that is illogical in our present system. When you have a Party in power in Great Britain which is not in power in Scotland, then the Scottish Grand Committee is packed with members of Parliament of the other country in order to make up the balance.


May I just correct the noble Lord? This is a fallacy. If he will look up the Standing Orders he will see that there are no votes of substance and there is no packing, and it is entirely a separate question. He is just repeating a fallacy.


I am sorry if I am repeating a fallacy, but I have seen in the past Members from England put on to the Scottish Grand Committee and regarding it as a penance of some sort. But certainly they were on the Committee and talking and voting, perhaps not on points of substance, but certainly they made up the membership of that Committee when the Party balance was wrong.


I must put this right. Under the Standing Orders of the other place the Scottish Grand Committee must contain, as well as all 71 Scottish Members, not less than 10 non-Scottish Members and not more than 15. They have to be appointed. The noble Lord, Lord Peart, who has been Leader in another place, will know this. There is no vote that is possible in the Scottish Grand Committee except on such things as whether a subject has been considered or not.


I do not entirely accept the noble Lord's correction.


Well, look it up.


But it is a fact that in many matters pertaining to Scotland, the Scottish opinion may be entirely different from the opinion of the House as a whole and the Scots have had to accept this. There are illogicalities of every sort in the system as we have it at present. The system of devolution that we now are proposing is not entirely logical. I think that this must be seen—and is seen in different terms from different points of view—in this Committee. But that we have got to try it I have no doubt whatsoever.

The noble Earl's Amendment is a reasonable attempt to highlight the problem. I agree with my noble friend that it is not an Amendment that could possibly be carried at the present time because there are so many other anomalies. For example, education is devolved to Scotland, but of course the universities stay outside the control of the Scottish Assembly, and one would really have to accept that where power is split then the Scottish Members of Parliament in Westminster must be able to have their say.

While I accept that the Amendment is, in a way, completely logical and that it certainly should be brought to light in the present state of devolution, when so little is devolved and so incompletely, then I think we have to accept the fact that the Scottish Members of Parliament must really act in exactly the same way as the Northern Ireland Members of Parliament have acted for many years. But it also points to the fact that the only logical solution to this problem is a form of federalism—I am glad that the debate in this House is showing this up—and that we must progress towards federalism; and we shall do so, with experience.


I feel compelled to speak by the powerful voice of my noble friend—I call him noble friend not with caution but because it is a fact—Lord Hughes, who I understand informed the Committee that there had been a growing feeling in Scotland that decisions were taken in London. Evidently his experience is far different from mine, and I think I served in the Scottish Office longer than he did. During the seven years I was there I was never aware of the fact that decisions were taken not in Edinburgh but in London. As James Stuart, Secretary of State for Scotland in those days, always said, if the Secretary of State could not get what he wanted out of the Cabinet he had no right to be Secretary of State, and he was absolutely right.

I never knew of a decision taken in Westminster that was not in line with what we wanted in Scotland, and if Lord Hughes can give chapter and verse to support what he said, I shall be very much surprised. The decisions were taken, in his day and mine, by the Secretary of State; they went before the legislation committee of the Cabinet, in the way every other Minister must put forward his proposals, but the decisions were taken by us in St. Andrew's House in Edinburgh, not in Whitehall.


I was invited by my noble friend—I return the compliment—to give an example and I will do so briefly. He will remember the occasion when your Lordships' House carried, against the Government, an alteration in the reorganisation of local government in Scotland breaking up the Strathclyde Region into four. It went back to the Commons and was carried by English votes.


I want briefly to give my experience, and I think my noble friend Lord Strathclyde will bear this out. The obvious subjects about which we are talking are health, education, social welfare, housing, local government, pollution, eroding and flooding, the countryside, roads, fire services and so on. On the main ones, in 18 years in the House of Commons I never spoke on any English subject in that range, certainly not on health, housing or local government. If one looks at the subjects with which Scottish MPs will have to deal here at Westminster if the Amendment is carried, one finds that they are very important ones indeed; defence, taxation, foreign affairs, trade and industry, including the distribution of industry, social security, agriculture and fisheries—other than salmon—international transport, trade union and employer associations, company law and safety standards. If they cannot keep them occupied, I shall be very surprised indeed.

The Scottish Members will be doing what they will have been sent to Westminster to do, and that is to look after Scottish and British interests in those very important matters. But they will not in any case, in my submission, be taking much interest in the subjects I started by mentioning—that is, those which are the devolved subjects in England—other than to obey the Whip, and they will be only too happy not to have to obey the Whips on those subjects.


This Amendment of my noble friend Lord Selkirk goes right to the centre of the problem and I am not sure that my noble friend Lord Drumalbyn did not point to it when he said that the Scots would not vote on any English issue unless it was at the behest of the Whips. I believe that the right or ability of Scottish MPs, after Scotland has an Assembly of its own, to vote on English matters is absolutely fundamental to the equity of the Bill. Time and again we have faced this problem and every time the Government have ducked it; we look forward to hearing what the noble and learned Lord will say tonight on the subject.

However, if 71 Scottish Members of Parliament go to Westminster at present, and are entitled to vote on all matters and look after all affairs of Scotland, and if there is then devolved to the Assembly all responsibility of a domestic nature (such as housing, health and social services, and education), and so the right of Scottish MP's to decide issues on those matters which affect Scotland is removed, how can the right of Scottish Members of Parliament to decide these same issues which relate to English matters possibly be retained?

It seems to me to be a huge and indefensible inequity, to which, as has been said on an earlier Amendment, the English have for some extraordinary reason not yet woken up. It will create antagonism and it will generate English nationalism, which at the moment does not exist, when the English realise that their domestic political future is being determined by Scottish Members of Parliament in a manner contrary to what their own English representatives have indicated by their vote.

I do not think that this is an absurd idea; I think it is a practical reality. Let us take an example. Let us suppose that there was a Labour Government, and that the Secretary of State for Education and Science said that all grammar schools, direct grant schools and public schools were to be abolished, and that henceforth comprehensive education was to be the only education available throughout the country. Education is a matter which is devolved to the Assembly. There might well, in a debate in another place, be a Conservative majority of English MPs who would not want such a régime, but there would be a three-line whip. I fail to believe that any noble Lord would think that the Scottish Members of Parliament would resist a three-line whip, and would not vote on a matter which commanded a strong Party whip on both sides just because it happens to be an English matter. I simply do riot believe that that would happen. Of course they would vote. There might be a majority of Members of Parliament ill favour of that measure, although there might well have been in the same vote a majority of English Members of Parliament against it.

In this instance, the Scots Members would have foisted onto England that which the English did not want, and that which the English Members of Parliament had indicated they did not want. The Scottish Members of Parliament would have voted on a matter which affected England, when the English Members of Parliament were denied the right to vote on the same matter when it affected Scotland, and upon which the Scottish Members of Parliament were also denied the right to vote.

I believe that this is a recipe for real disaster and for real conflict between the nations. The noble Lord, Lord Hughes, said that he was worried when people said that this was the price that Scotland had to pay. This is the trouble with the Bill. As I have said before, it does not cultivate the harmonies; it exaggerates the discord.

One comes back to the inevitable conclusion that, however plausible the arguments are on the surface, in the end the Bill, because of these types of measures, will do no good. The reason is quite simple; namely, that the Government have tried to mix a federal system and a unitary system. The noble Viscount, Lord Thurso, and the noble Lord, Lord Mackie of Benshie, said that they were glad that this was a step towards federalism. But what the Government are doing is trying to give a federal system to Scotland, a federal system to Wales and a unitary system to England. It is that which will not work.

It may be that the Government will say—and I apologise if I take the words out of the noble and learned Lord's mouth—that the Scottish Members will not interfere with English legislation. But I do not believe that we can rely upon that in a constitutional Act of Parliament. It will put the Scottish and Welsh Members in an intolerable situation. They will not be able to vote on Scottish domestic affairs because they will have been devolved. They will not be able to vote on Welsh domestic affairs because they will have been devolved; and they will not be able to vote on English domestic affairs because that is not their business. So, what are they going to vote on? They can vote on the Budget, of course, and on all the other things which are of a reserved nature. But they will almost he disfranchised from the guts of political life, which are the domestic affairs—


We shall still have our rugby.


I am quite sure that regardless of what Scottish or Welsh Members are allowed to vote upon, it will not stop the noble Lord, Lord Davies of Leek, from speaking and voting on a multifarious number of topics—and very well will that be received, too. I think, therefore, that my noble friend Lord Selkirk was quite right to put this Amendment down, but it does have difficulties; and so bizarre is this Bill that it is very difficult to amend the blessed thing without running into the very difficulties which have exercised your Lordships this evening.

Of course, the Amendment seems logical enough, and I utterly sympathise with its purpose, but the trouble is that it creates two classes of Members of Parliament, some who can vote on some things and others who can vote on all things. I think it was the noble Lord, Lord Raglan, who said that it is a cardinal principle that Members of Parliament are equal and have an equal right and vote over all matters. But even if one sympathises with my noble friend Lord Selkirk in his Amendment, I do not believe that if it were pressed it would be accepted by another place, because it will distinguish between Members and will divide Members. This is the last thing, I am quite certain, another place would want, and it is the last thing that I am sure my noble friends would wish to suggest to another place.


The noble Earl says that it will distinguish between Members, but this Bill already does so, and he has already said that it does. He has already said that it makes the Scottish MPs (and, when the Wales Bill comes through, the Welsh MPs) of a different category from the English MPs, because many subjects will have been devolved to Assemblymen and they will no longer have any say over those matters.


I quite agree, and I have a lot of sympathy with the noble Lord, Lord Raglan. But what I was going to say was that I sympathise with the purpose of this Bill but I believe it is terribly important that we should try to find some Amendment which would be acceptable, not only to your Lordships but to another place. I think it is very difficult to do, but I believe it can be done; and I would hope that if my noble friend were not to press this Amendment tonight we might be able to come up with a suitable Amendment at the Report stage which might combine the principles of what he intends to do with practical acceptance by both your Lordships and, one hopes, another place. So I would hope that my noble friend would not in fact press it this evening.


I shall try to follow the example of the noble Earl, Lord Selkirk, and be brief, and I hope that on this occasion I might perhaps get to the end of what I have to say without the interruptions which my speeches usually occasion. I have heard this Bill described by many adjectives, but this is the first time it has been described as "blessed", and I am indebted to the official spokesman—


I hesitate to interrupt the noble and learned Lord within three words of the beginning of what he has to say, but if he is going to quote me I know that he would wish to quote me correctly. I did not say "blessed"; I said "bizarre"—and that is not the same thing, even in the noble and learned Lord's language.


"Blessed" came through loud and clear.


No doubt the record will show, as indeed the Chief Whip is telling the noble Earl, that he said "blessed". Turning aside from these matters, I agree entirely with the noble Earl that there is a fundamental reason why one should not support this Amendment. The idea which the new clause asserts is one which has been looked at many times in the past, and particularly in connection with the Irish Home Rule Bills. Indeed, as the noble Earl pointed out, the Kilbrandon Commission, in paragraph 812, contains a passage about this in which it is said that the "in and out principle", as it was there described, was regarded as impracticable. I would believe that to be so, and I believe it to be unworkable and not in keeping with the practice and procedures of the House of Commons. So in that, at least, I am in agreement with the noble Earl—that this is a had Amendment for that reason.

But, practicability apart, in the Government's view the proposals in the Bill provide no cogent reason for excluding Scottish Members from full involvement in the business of Parliament. I would suggest that this is connected—it is certainly not unconnected—with Amendment No. 327; that Parliament will remain sovereign, still able to legislate on everything, including devolved matters, anywhere in the United Kingdom, and for the United Kingdom as a whole, irrespective of the devolution of legislative competence in relation to certain matters to the subordinate Assembly.

Even in the devolved fields, in addition to its inherent power to legislate, Parliament will directly control the use of the Government's reserve powers, for example, the general powers in Clauses 35 to 37. Even in matters not formally or directly touching Scotland but falling under the head of matters in this Amendment, legislation for England and Wales—that is, nearly 90 per cent. of the people—is almost bound to have repercussions for the remaining 10 per cent. in a way which does not apply to anything like the same degree in the reverse direction. There is nothing in all this to require any change in Scotland's voice in the other place where English Members will continue to predominate. The Government do not say that these issues should never be re-examined but that this Bill is an inappropriate vehicle and this Amendment a still more inappropriate method.

There are one or two matters that I would like to pick up. The reason why one should not change it in this Bill is that at the present time Scottish Members and Welsh Members vote on English questions. The English are not going to be worse off because of the provisions of the Bill. Certainly a change is made: they will be deprived, to all intents and purposes, of the right and opportunity to vote on the matters devolved when they affect Scotland and only Scotland. That is the only change that the Bill makes in this regard. I have already indicated that the decisions about English matters, because they affect so many in the population, are bound to have an effect in Scotland. I must emphasise that, for it is a very important aspect of this whole debate.

On a much more general matter I find myself in total agreement with the noble Viscount, Lord Thurso, that this Amendment is wholly inconsistent with the continued unity of the United Kingdom. It may be that the anomaly drawn attention to by the Amendment is one to which there is no perfect answer; but what could be more inconsistent than that Members of Parliament for one part of the United Kingdom cannot play an equal role in the ordinary work of the United Kingdom Parliament? The remedy here is worse than the disease, substantially worse. I would agree with the noble Lord, Lord Hughes, that here (as in Amendment No. 327) we are in the incredible position that the House of Lords is threatening the Scots with all kinds of consequences if they proceed to want devolution. This is hardly the way to go about countering the threat against the unity of the United Kingdom—a threat posed not South of the Border but, as I said earlier, North of the Border.

In my submission this is a matter properly for the other place. It cannot he said never to have been raised in the other place. I think that the honourable Member for West Lothian constantly raised that matter there and the other place took its decisions on Second Reading and on Third Reading in the full knowledge of the matter which he raised constantly and which attracted the name of his constituency. In my submission this is a bad way of going about it. It is a threat to the United Kingdom, and I would invite the noble Earl not to press this Amendment.


I am sure I am mentally numb over some things but I should be grateful if the noble and learned Lord could draw me along with him a little more slowly than he has. How can he say that this does not affect the United Kingdom at all, when certain parts have been devolved to Scotland and yet, as the Bill stands, the Scottish Members of Parliament are going to determine what happens in England in a way that they cannot do in Scotland? I do not understand it.


Let me explain. What I am saying is that, at the moment, 71 Scottish Members and 31 Welsh Members come and vote in the United Kingdom Parliament. You can now have a situation where, in England, there is a majority of Conservative Members but in the United Kingdom Parliament there is a majority of Labour Members. That is regarded as tolerable; it exists at the present time. The Bill does not change that. It does not make the situation any worse, as it were, for the English Conservatives than it is at the present time.

Several noble Lords: Oh!


I was interrupted by a little mirth there. I will try to pick up the thread again. Surely, that is plain.

The other point is this: it seems to be imagined that the English will be up in arms if a situation develops in the future when there is a majority of Labour Members who come from Scotland and tip the balance in the United Kingdom. As my noble friend Lord Hughes pointed out, this kind of situation has been lived with in Scotland—and indeed in Wales—for many years, where the possibility exists that although Scotland and Wales return a majority of Labour Members, in fact, because of the influence of England, they get themselves a Conservative Government at Westminster. They have had to thole it—to use the perfectly good Scottish word. Why should it cause such a tremendous revolution in England if they have to thole it once or twice?


Can the noble Lord explain this? In the example which I gave, for instance over education, which is a devolved subject, the Assembly deals with that and says what kind of education it is going to have in Scotland. In the same way, the United Kingdom at Westminster says what education is going to be like in England. But over that matter the Scottish MPs can vote regarding the type of education that the English are going to have, even though that may be contrary to what the English want.


I have never disputed that. They can do that now.

The Earl of SELKIRK

The noble and learned Lord, Lord McCluskey, made a very predictable speech. I tried to make it up before he started, and it was quite a good speech; but he really did not go to the fundamental point. I do not want to pander to Scotland. There is this extraordinary fear which people have of Scottish nationalism; it is totally unjustified. The noble Lord, Lord Hughes, talked about discontent. If he goes to any part of the country he will find great discontent at the Government. I am not saying this particularly as something anti-Socialist. All over the country people are becoming more and more conscious about politics; and they are becoming more and more conscious that it could be done better. It is not only in Scotland. Scotland transmutes it into a sense of nationalism, but this is going on all the time.

I do not agree with the fact that there is no division; there is a sharp division. Members will be told frankly that they cannot vote on certain subjects. I do not think that this will have the slightest repercussion in Scotland. I think that it will make them realise to some extent that they have to concede something. To be perfectly frank, Scotland is not following this debate at all. If you read the Scotsman every day you do not have the foggiest notion of what is happening here. I do not blame them for that—but you would not have any idea.

I must say that I found the noble Viscount, Lord Thurso, making some extraordinary remarks. I suppose that if you are a Liberal you can do so. He said that this cuts chunks of legislative power out of the United Kingdom. It is a lovely idea, but that has absolutely nothing to do with the Amendment or the Bill. But never mind about that. I want to make two points and I want to put this to my noble friend Lord Ferrers. If I withdraw this Amendment, will he undertake to put an Amendment down at the next stage which gives full discussion to the other place on this issue, and which makes a demand on Scotland to show that they have to pay something for having their Assembly? Can he assure me that he can put an Amendment down with a cut in it that does both those things?

The LORD PRIVY SEAL (Lord Peart)

Hear, hear!


The noble Lord, Lord Peart, said "Hear, hear". I am delighted that he should do that; it gives me great courage. What I can assure my noble friend is that I will undertake to put an Amendment down at the next stage which will enable this, if it is passed, to be discussed and considered by another place. That is the appropriate place in which to discuss the matter. I hope that that will satisfy the noble Earl.

The Earl of SELKIRK

I do not want to press this tonight. It is much more important that noble Lords are considering the Amendment. I am prepared to consider putting an Amendment down, or the noble Earl putting an Amendment down, which will achieve these objects. I am not trying to jostle the Government. I am not keen in dividing the Committee if I can possibly help it. I want to get the Bill improved, as I have tried to do from the beginning. If the noble Earl gives that undertaking, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 67 [Transfer of property]:

11.10 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 211: Page 33, line 11, leave out subsection (3).

The noble Viscount said: I wonder, after those heady draughts, who would really wish to descend to the transfer of property?—but there is a noble Lord opposite who is prepared to do so. The point is a short one. I entirely understand that in Clause 67 there will be the requirement to transfer a great deal of property, no doubt of a fairly miscellaneous nature, which is required to be transferred in connection with the exercise of functions concerned with devolved matters. What I do not follow at the moment are the comprehensive provisions of subsection (3) of Clause 67.

The noble Lord, Lord Kirkhill, I am sure, will be able to explain this, but what I find different as between this provision and the equivalent provision not that long since passed in the Local Government (Scotland) Act 1973, in Section 222, is yet again the override powers that are provided in this subsection (3). Whereas, of course, it must be right that there should be the ability to transfer property, is it right that one can override any restrictions that anybody may have put upon the property in the first place? These may he statutory or they may he a matter of private negotiation. They could easily have been the terms on which some property was transferred to a public authority in the first place; yet these terms are to be disregarded and overridden without, so far as I can make out, any opportunity for anybody to protest or do anything about it. It is really this aspect of the issue which goes beyond what precedent would seem to indicate, and which I should like the noble Lord, if he would be so kind, to explain. I beg to move.


If I can be of help to the Committee, I think it would be best if I explained the intention behind Clause 67. When the Scottish Executive take over responsibility for devolved matters, it is right that they should also take over property used in connection with those matters—property now vested in my right honourable friends, the Secretary of State for the Environment and the Secretary of State for Scotland. Indeed, it would be a little odd if they did not, for the Executive would then be beholden to the Government for their offices and furniture at a time when they were responsible, under this Bill, for a wide range of policy and executive functions.

As noble Lords will recognise, such property transfers are a perfectly normal feature of legislation setting up new public sector bodies. For example, property was transferred by the Minister for Public Building and Works to the Post Office Corporation under the Post Office Act 1969. The property dealt with by Clause 67 will be of a diverse character—office blocks occupied by civil servants working for the Executive on devolved matters, the Assembly accommodation itself, including the Royal High School, garages, stores, caretakers' houses—even ancient monuments, as was mentioned earlier, owned by the Secretary of State—hospitals, and so on. The common feature of this collection is that the properties are all used in connection with devolved matters and are now owned or leased by the Secretary of State. Much of the property will be in Crown hands and, as I am sure many noble Lords will know, in Scotland that means that there may be restrictions on the use or disposal, arising from the system of tenure that exists there. Other properties will have been leased by the Secretary of State, and quite a common feature of leases is a restriction imposed by the landlord, giving him the right of veto over proposals to assign, transfer or sub-let the property to another person.

Quite obviously, of course, if Clause 67 lacked subsection (3) it would be possible for a landlord, or a feudal superior in Scotland, to thwart the intention of this legislation by refusing to agree to assignation or sub-letting; and subsection (3) simply sets aside such restrictions in the particular circumstances of a transfer of property on devolution. I want to assure your Lordships that no general encroachment on landlords' rights is intended by this subsection which, as the noble Viscount will note, is narrowly defined. Since subsection (5) of Clause 67 transfers liabilities, including that of paying rent, it is difficult to see what loss a landlord could sustain by the operation of subsection (3). Indeed, it would be fair for me to say that landlords might find the Executive to be a model tenant. At any rate, that is the underlying thinking behind the clause and, in particular, subsection (3) thereof.


I am obliged to the noble Lord for that explanation. It is funny, however, that when such incidents of tenure would, no doubt, have occurred in the case of local government property, they did not appear to be dealt with in the provision in the Local Government (Scotland) Act. I should have thought that local authorities, equally, had office blocks, schools, historic buildings and other such places, which would have been subject to these feudal rights, in whatever state they are in Scotland at the moment. However, it seems to me that the main point is that the noble Lord is able to say that, by virtue of subsection (5), there really will he no confiscation of any proprietary rights of any value. It is this that really matters more than anything else. Since he is able to assure us that that is so, I imagine that the Committee would wish the matter to be left there. If so, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 67 agreed to.

Clauses 68 to 70 agreed to.

Clause 71 [Complaints of maladministration]:

The DEPUTY CHAIRMAN of COMMITTEES (Lord Amherst of Hackney)

I should warn the Committee that if Amendment No. 289 is agreed to, I cannot call Amendment No. 212.

Baroness STEDMAN moved Amendment No. 289:

Page 34, line 34, leave out subsection (2) and insert— ("(2) The provisions of sections 20(3) and (11), 21(6), 56 and 74 of this Act shall not apply in relation to the Parliamentary Commissioner Act 1967, but an Order in Council under this section may apply, with such additions, exceptions and modifications as appear to Her Majesty to be necessary or expedient, any of the provisions of that Act.")

The noble Baroness said: This Amendment is consequential on Amendment No. 266, which added the Parliamentary Commissioner Act to Part III of Schedule 10, thereby ensuring that the Scottish Assembly will be able to legislate for the investigation of allegations of maladministration by a Scottish Secretary in relation to devolved matters. Clearly, the Assembly will not be in a position to legislate about maladministration from the moment Scottish Secretaries take over their responsibilities, so Clause 71 provides for interim arrangements to be made pending the Assembly making its own arrangements. These interim arrangements will be made in an Order in Council applying, with such additions, exceptions and modifications as necessary, any of the provisions of the Parliamentary Commissioner Act 1967.

The addition of the 1967 Act to the list in Schedule 10 meant that that Act as applied to the Scottish Assembly would attract the general conversion provisions in Clauses 20, 21, 56 and 74 of the Bill. This is unnecessary, because in the interim or short-term, the arrangements for investigating maladministration will be spelt out in the Order in Council, which will itself make the necessary conversions to the 1967 Act; and in the long-term the Assembly can make its own legislation and the conversion provisions become irrelevant. Thus the new subsection (2) disapplies those general conversion provisions in relation to the 1967 Act. Otherwise the new subsection is similar to the existing subsection (2).

The noble Viscount, Lord Colville of Culross, had put down Amendment No. 212 to subsection (2) to delete the word "additions", and he will presumably want to make the same change to the Amendment which we have now put forward. There may be technical reasons in the way of that tonight, but we are prepared to accept his Amendment. If it is not possible to do so tonight, we will undertake to make such an amendment at Report stage. I beg to move.


This happy news, coming at this time of the night, only leads me to depart into some realm of fantasy. There is, I think, a point of substance here, and I am very glad that the noble Baroness has been able to meet me on this. There has just arrived in this House from another place a Bill called the Local Government Act 1974 (Amendment) Bill, which is not to do with the Parliamentary Commissioner for Administration so much as with the Local Commissioner for Administration. But it makes the point that there is being made by Westminster Act of Parliament a change in the powers, which I anticipate adds, perhaps, one tooth to the powers that the Local Commissioner has.

These matters are very jealously looked at. If we are to have an Order in Council which makes additions for Scotland by Order in Council which are not the equivalent of additions made to the powers of the Parliamentary Commissioner South of the Border, there will be ill feeling. There are sufficient restrictions upon what the Parliamentary Commissioner can do anyway (and the greater restriction that sometimes nobody pays the slightest attention to what he says) for there to be a good deal of political mileage in this kind of thing. If, therefore, the Government are prepared at the next stage of the Bill to take "additions" out of their Amendment—this is why I asked the noble Baroness not to deal with this matter on the earlier paving Amendment—and if the noble Baroness is prepared to tell us that, with the removal of that word and any consequential alterations, the matter will then be held in the way in which I should have hoped, I shall be entirely satisfied. Indeed, I am extremely grateful to the Government for having met this point.

Baroness STEDMAN

I can give those assurances to the noble Viscount.

On Question, Amendment agreed to.

Clause 71, as amended, agreed to.

Clause 72 [Confirmation by House of Commons of resolutions passed by it but not passed by House of Lords]:

On Question, Whether Clause 72 shall stand part of the Bill?


This Question—to leave out Clause 72—is consequential upon a decision which your Lordships took earlier in the Committee stage with regard to the rights of your Lordships' House over voting on secondary legislation which comes under this Bill. I beg to move.

On Question, Clause 72 negatived.

Clause 73 [Reckoning of time for certain purposes]:

11.22 p.m.

Lord McCLUSKEY moved Amendment No. 390: Page 35, line 19, leave out ("37 or 72") and insert ("or 37").

The noble and learned Lord said: This Government Amendment reflects your Lordships' decision to remove from the policy override Clauses 35, 36 and 37 the power of the House of Commons to confirm a Resolution which they have passed and allow the Secretary of State to go ahead with override action, in spite of the House of Lords not having passed a Resolution to the same effect. The Amendment achieves its effect by simply removing the reference to Clause 72 which, of course, has now been removed from the Bill.

The Government believe that the clause itself is still essential. If Parliament is going to lay down time limits within which action can be taken in Parliament, it is no more than common sense to relate those time limits to sitting days and not to calendar days. Otherwise, in an extreme case, the time limit could expire before anyone has had a chance to take whatever action is in point. The override Clauses 35, 36 and 37 empower the Secretary of State to take action which requires Parliamentary approval within 28 days. Clause 73 prevents time from running while Parliament is dissolved, or prorogued or adjourned for more than four days. I beg to move.


I recognise that the Government have put this down as a consequential Amendment following a decision which was taken by your Lordships' Committee. In addition to the explanation which the noble and learned Lord has given, it is in the nature of editing the Bill. However, as the question of the whole of Clause 73 arises (the noble and learned Lord has referred to it), and there is an Amendment standing in the name of my noble friends to delete Clause 73, I think that this might be a convenient moment for me to put a question to the noble and learned Lord about it.

Clause 73 deals with periods of time. My understanding is that if Clause 73 were to be taken out of the Bill it would mean that periods of time which did not relate to the House of Lords' situation would also be taken out of the Bill. For that reason, therefore, it is necessary to retain Clause 73; it covers periods of time which are not connected with the Amendment which we passed earlier in this Committee. Naturally, the Amendment to leave out Clause 73 was put down as well in order that the Government could indicate that the Bill was drafted in that manner.


I believe I have so indicated.

On Question, Amendment agreed to.

Clause 73, as amended, agreed to.

Clauses 74 and 75 agreed to.

Clause 76 [Expenses]:

Earl FERRERS moved Amendment No. 213: Page 35, line 36, leave out from first ("Act") to end of line 37.

The noble Earl said: This is a probing Amendment. Clause 76 reads: There shall be paid out of moneys provided by Parliament any administrative expenses incurred by a Minister of the Crown under this Act "— that is understandable. It continues: and any increase attributable to this Act in the sums so payable under any other Act. I do not understand what it means, and I should be grateful if the noble Lord, Lord Kirkhill, could explain it. I beg to move.


I shall certainly attempt to do what the noble Earl has asked of me. Clause 76 is a common form clause which is included in Bills introduced in another place in order to avoid the need to italicise every provision which has financial implications. Where a Bill contains numerous provisions which provide for expenditure as does this Bill, it would be wasteful to set large parts of the Bill in italics when first introduced. To do that would mean a great deal of resetting once the stage at which italics are necessary has passed. So, instead of numerous italicised passages, a single expenses clause on the lines of Clause 76 is included and that clause is the only part of the Bill which is italicised.

Clause 76 is a procedural device, and now that the Bill has left the other place it has served its purpose. An expenses clause of this kind is always regarded as spent when legislation is consolidated. It has no effect of substance. As and when money is required for various purposes of the Bill, that money will have to be voted in the usual way. I hope that explanation is of some assistance.


In fact, it does not give me very much assistance. The noble Lord merely explained why it might have been in italics and was not in italics. He really did not explain what it would have meant had it been in italics, other than the fact that it was presumably a financial provision, which I quite understood in the first place. What I did not understand was the meaning where it says— any increase attributable to this Act in the sums so payable under any other Act". It may be that this is not an important point, but I did not quite understand what it meant, and I am afraid I still do not understand.


I am advised that it is a procedural device. I am advised that its emphasis is now spent because the Bill has left the other place. I am further advised that it is common and usual practice.


I am sure the noble Lord's advice is excellent, but it still does not help my understanding of it. However, at this juncture I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 76 agreed to.

Clause 77 [Interpretation]:

11.30 p.m.

The Earl of SELKIRK moved Amendment No. 376:

Page 35, line 40, at end insert— (" "Chairmen" means the Chairman of Committees of the House of Lords and the Chairman of Ways and Means in the House of Commons.")

The noble Earl said: I shall not be very long. As I wandered through this Bill for the first time I came upon the word "chairman". I know that if I had been a very intelligent man, and I happened to have the full list of Statutes for the last 40 years around my sitting-room, I could easily have found out what the answer was. The answer, of course, is the chairman of Ways and Means; and the chairman in this House. It seems to me a matter of simple convenience for anyone reading this Statute that those words should be put in the interpretation clause. They are perfectly correct. They add nothing to the Bill; they detract nothing from the Bill, but they make it just a little simpler for anyone reading the Bill for the first time. I beg to move.


When the noble Earl suggested that such a definition might be put in I indicated that the Government did not share that view and I hoped that he would be satisfied with the explanation given. He is obviously not so satisfied, but it is the firm view of the Government and of Parliamentary Counsel, who have specifically looked at the matter again, that the definition is already incorporated in the Bill by Clause 28(4) and nothing further is needed. Indeed, the proposed Amendment would simply complicate the Bill, because to put into Clause 77 material needed solely—and I emphasise that, solely—for Clause 28 would not help the reader. The Bill as it stands imposes no hardship on the reader. To follow Clause 28 in detail he must in any event turn to the 1936 Act, because in substance what Clause 28 does is to add new provisions to that Act. Indeed, Clause 28 is not comprehensible on its own.

Clause 28(4) mops up in general terms all expressions—and I quote: to which a meaning is assigned by the Act of 1936". The Act, in its own definition clause, contains very few definitions: the critical expressions are defined in the substantive provisions as they go along. So Clause 28(4) takes no chances. And one could not define "chairmen" without laboriously checking the whole of Clause 28 against the Act of 1936 to see what else would merit express words. The draftsman has been consulted specifically about this and he concurs in the views which I have expressed.

The Earl of SELKIRK

With very great respect, the draftsman must live in a totally unreal world. Anyone reading this provision comes to the word "chairmen" and it means absolutely nothing until one has the Act of 1936. Normally one does not have those Acts readily available. I am only putting this forward as a convenience. I will not press the Government, but I must really say that I expect a higher standard for the general public; they should have some idea of what it is about. The moment I realised what was intended by the word "chairmen" the words fell into place straight away. I know something about the 1936 Act, but I could never have found out unless I had the Act before me. I think that the noble and learned Lord's draftsmen are living in a totally unreal world and have no respect for ordinary people like myself and others. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.